Territory

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“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 State…territorial sovereignty is often the point of departure in settling most questions that concern international relations”.

Island of Palmas (Netherlands v. United States of America)¸ 1928, 2 RIAA, 829 (Harris 187).

“Territorial sovereignty plays the part of a presumption. It must bend [ie. yield] before all international obligations, whatever their origin, but only before such obligations”

Lac Lannoux (France/Spain), 1959, 24 ILR at 101.

…territory is neither an object nor a substance; it is a framework. What sort of framework? The framework within which the public power is exercised…territory as such must not be considered, it must be regarded as the external ostensible sign of the sphere within which the public power of the state is exercised.

La Pradelle pleadings, Nationality Decrees in Tunis and Morocco, PCIJ Series C, N°2, pp.106, 108. (Harris at 195)

There is for instance, no rule that the land frontiers of a State must be fully delimited and defined, and often in various places and for long periods they are not….

North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. The Netherlands), ICJ Reports 1969 at 32, para 46.

“In general, when two countries establish a frontier between them, one of the primary objects is to achieve stability and finality.”

Temple of Preah Vihear, (Cambodia v. Thailand), Merits, Judgment of 15 June 1962, ICJ Reports 1962 at 34.

“Once agreed, the boundary stands, for any other approach would vitiate the fundamental principle of the stability of boundaries, the importance of which has been repeatedly emphasized by the Court (Temple of Preah Vihear, I.C.J. Reports 1962, p.34; Aegean Sea Continental Shelf, I.C.J. Reports 1978, p.36).

Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, ICJ Reports 1994 at 37, paras 72-73.

“Frontier rectifications cannot in law be claimed on the ground that a frontier area has turned out to have an importance not known or suspected when the frontier was established.”

Temple of Preah Vihear, (Cambodia v. Thailand), Merits, Judgment of 15 June 1962, ICJ Reports 1962 at 25

“Between independent States respect for territorial sovereignty is an essential foundation of international relations”.

Corfu Channel Case (United Kingdom v. Albania) Merits, ICJ Reports 1949 at 35. Emphasis added.

2

Vienna Convention of State Succession in Respect of Treaties (1978)Article 11

“A succession of States does not as such affect: a. a boundary established by a treaty; or, b. obligations and rights established by a treaty and relating to the regime of a

boundary.”

“… to define a territory is to define its frontiers” Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, ICJ Reports 1994 Jat 26, para. 52.

The Court recalls that the principle of territorial integrity is an important part of the international legal order and is enshrined in the Charter of the United Nations, in particular in Article 2, paragraph 4, which provides that:

“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.”

In General Assembly resolution 2625 (XXV), entitled “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations”, which reflects customary international law (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, pp. 101-103, paras. 191-193), the General Assembly reiterated “[t]he principle that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State”. This resolution then enumerated various obligations incumbent upon States to refrain from violating the territorial integrity of other sovereign States. In the same vein, the Final Act of the Helsinki Conference on Security and Co-operation in Europe of 1 August 1975 (the Helsinki Conference) stipulated that “[t]he participating States will respect the territorial integrity of each of the participating States” (Art. IV). Thus, the scope of the principle of territorial integrity is confined to the sphere of relations between States.

Kosovo Advisory Opinion, ICJ 2010, paragraph 80

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“The basic legal concept of State sovereignty in customary international law expressed in, inter alia, article 2, paragraph 1, of the United Nations Charter, extends to the internal waters and territorial sea of every State and to the air space above its territory.”

Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. The United States of America), Merits, ICJ Reports 1986 at 111, para. 212.

“The Chamber observes in particular that the question of the course of the boundary on the bridges is totally independent of that ownership of those structures, which belong to the Parties jointly.”

Frontier Dispute (Benin/Niger), Judgment, ICJ Reports 2005 at 142, para. 124.

Hay-Bunau-Varilla Treaty (1903)

Article 11: “in perpetuity the use, occupation and control” Article 111: “all the rights, power and authority … which the US would possess and exercise as if it were sovereign to the entire exclusion of the exercise by the Republic of Panama of any such rights, power or authority”.

4

Agreement between Cuba and the United States for the Lease of Lands for Coaling and Naval Stations, signed at La Havana/Washington 16 February 1903

Article II

“… the right to use and occupy the waters adjacent to said areas of land and water … and generally to do any and all things necessary to fit the premises for use as coaling or naval stations only, and for no other purpose.”

Article III

“While on the one hand the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand the Republic of Cuba consents that during the period of occupation by the United States of said areas under the terms of this agreement, the United States shall exercise complete jurisdiction and control over and within said areas with the right to acquire for the public purposes of the United States any land or other property therein by purchase or by exercise of eminent domain with full compensation to the owners thereof”.

Emphasis added

“the Gulf waters, other than the 3-mile maritime belts, are historic waters and subject to a joint sovereignty of the three coastal States.”

Land, Island and Maritime Frontier Dispute (El Salvador/Honduras, Nicaragua Intervening) Judgment, ICJ Reports 1992 at 601, para. 404.

Treaty Concerning the Relations between the United States of America and the Republic of Cuba, 29 May 1934

Article III

Until the two Contracting Parties agree to the modification or abrogation of the stipulations of the Agreement in regard to the lease to the United States of America of lands in Cuba for coaling and naval stations … the stipulations of that Agreement with regard to the naval station of Guantanamo shall continue in effect.

“It is clear that … the New Hebrides is neither British nor French and, though Britain and France each reserve sovereignty over their own nationals, there is no territorial sovereignty (unless it can be said to be jointly exercised)… Incidentally, for this reason, no multilateral convention applies to the New Hebrides unless it is applied as a result of joint agreement between the two Signatory Powers. In fact the Condominium is, vis-à-vis Britain and France, in effect, a foreign administration, because neither one nor the other controls or administers it”.

Colonial Office Records, 1955 (Reproduced in M.G. Kohen “Is the Notion of Territorial Sovereignty Obsolete?”, M.A. Pratt & J.A. Brown Borderlands Under Stress, Kluwer, 2000, 35 at 41-42).

“[S]ometimes, two states exercise conjointly jurisdiction over certain territories (joint ownership, co-imperium or condominium); likewise, in certain international arrangements, the representatives of states exercise conjointly a certain jurisdiction in the name of those states or in the name of organizations. But these cases are exceptional, and international judicial decisions are slow to recognize their existence, especially when they impair the territorial sovereignty of a state.”

Lac Lannoux arbitration 24 ILR (1957) at 127 (in Kohen, op cit at 42.)

Article 42 Hague Regulations, annexed to:Second Hague Convention Relative to the Laws and Customs of War on Land (1899)Fourth Hague Convention Relative to the Laws and Customs of War on Land (1907)

Article 42Territory is considered occupied when it is actually placed under the authority of the hostile army.

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“… If a dispute arises as to the sovereignty over a portion of territory, it is customary to examine which of the States claiming sovereignty possesses a title – cession, conquest, occupation etc…superior to that which the other State might possibly bring forward against it.”

Island of Palmas (Netherlands v. United States of America)¸ 1928, 2 RIAA, 829 (Harris pp. 187-188).

Antarctic Treaty (1959)Article IV

1. Nothing contained in the present treaty shall be interpreted as: a. a renunciation by any Contracting Party of previously asserted rights of or

claims to territorial sovereignty in Antarctica;b. a renunciation or diminution by any Contracting Party of any basis of claim to

territorial sovereignty in Antarctica which it may have whether as a result of its activities or those of its nationals in Antarctica, or otherwise;

c. prejudicing the position of any Contracting Party as regards its recognition or non-recognition of any other State’s right of or claim or basis of claim to territorial sovereignty in Antarctica.

2 No acts or activities taking place while the present treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present treaty is in force.

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“… a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be settle.”

Island of Palmas (Netherlands v. United States of America)¸ 1928, 2 RIAA, 829 (Harris at 189)

“The effect of discovery by Spain is therefore to be determined by the rules of international law in force in the first half of the 16th century…”

Island of Palmas (Netherlands v. United States of America)¸ 1928, 2 RIAA, 829 (Harris at 189)

“... in many cases the tribunal has been satisfied with very little in the way of actual exercise of sovereign rights, provided that the other State could not make out a superior claim. This is particularly true in the case of claims to sovereignty over areas in thinly populated or unsettled countries”.

Legal Status of Eastern Greenland Case, PCIJ Series A/B N°53, 1933 at 46.

“manifestations of territorial sovereignty may assume different forms, according to conditions of time and place. Although continuous in principle, sovereignty cannot be exercised in fact at every moment on every point of a territory.”

Island of Palmas (Netherlands v. United States of America)¸ 1928, 2 RIAA, 829 (Harris p. 189)

“The intermittence and discontinuity compatible with the maintenance of the right necessarily differ according as inhabited or uninhabited regions are involved, or regions enclosed within territories in which sovereignty is incontestably displayed or again regions accessible from, for instance, the high seas”

Island of Palmas (Netherlands v. United States of America)¸ 1928, 2 RIAA, 829 (Harris at 189).

“For the present purposes, the Court need not concern itself with the status of acquisitive prescription in international law or with the conditions for acquiring title to territory by prescription. It considers, for the reasons set out below, that the conditions cited by Namibia itself are not satisfied in this case and that Namibia’s argument on acquisitive prescription cannot be accepted”.

Kasikili/Sedudu Island (Botswana/Namibia), Judgment, ICJ Reports 1999 1045 at 1105, para. 97

“According to Namibia, four conditions must be fulfilled to enable possession by a State to mature into a prescriptive title:

" 1. The possession of the . . . state must be exercised à titre de souverain.2. The possession must be peaceful and uninterrupted.3. The possession must be public.4. The possession must endure for a certain length of time."”

Kasikili/Sedudu Island (Botswana/Namibia), Judgment, ICJ Reports 1999 1045 at 1103, para.94

“…a claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involves two elements each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority.”

Legal Status of Eastern Greenland Case, PCIJ Series A/B N°53, 1933 at 45-46.

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“Namibia alleges that in the present case Germany was in peaceful possession of the Island from before the beginning of the century and exercised sovereignty over it from the time of the establishment of the first colonial station in the Caprivi in 1909, al1 in full view and with the full knowledge of the Bechuanaland authorities at Kasane, only a kilometre or two from the Island. It states that this peaceful and public possession of the Island, à titre de souverain, was continued without interruption by Germany's successor until accession of the territory to independence. Finally, it notes that, after itself becoming independent in 1966, Botswana, which was aware of the facts, remained silent for almost two further decades.”

Kasikili/Sedudu Island (Botswana/Namibia), Judgment, ICJ Reports 1999 1045 at 1103, para. 94

“It should be recalled that when the principle of the uti possidetis juris is involved, the jus referred to is not international law but the constitutional or administrative law of the pre-independence sovereign, in this case Spanish colonial law…”

Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), judgment of 11 September 1992, I.C.J. Reports 1992, at 559, para. 333