Territorial Sovereignty


Territorial Sovereignty is the condition under which a state has exclusive rights over the territory.
– Free from external interference.
– Example of home – parents over children and home.
• Shaw “the essence of territorial sovereignty is contained in the notion of title.“
• Exclusive authority – to make law, govern all within,
• Includes : island, islets, rocks, and in certain circumstances also includes reefs
• Rules of territorial sovereignty – rooted in Roman law governing ownership and possession
• Methods of acquiring territory – directly descendant of the roman rules dealing with property
Title
• The essence of territorial sovereignty – contained in notion of TITLE.
– Relates to both Factual and Legal conditions under which territory is deemed to belong to one particular authority
• Mere control does not give title.

Existence of element required under int’l law to entail legal consequences of a change in the juridical status of that territory
• ICJ in Burkina Faso / Mali Case (1986)
– The word ‘title’ comprehends both any evidence which may establish the existence of a right and the actual source of that right.
– Decolonolized state of Africa were in dispute (which of the States should exercise jurisdiction?
» ICJ – doctrine of Uti Possidatis (as you possess so shall you continue to possess) has exceptional importance in these sort of disputes . It is evidence to establish existence.
Four types of regime
– Territorial sovereignty
– Territorial but not subject to the sovereignty of any state(s) (no man’s land)
– Which possesses a status of its own (res nullis, rescommunis – eg. High seas)
• What is territorial sovereignty?

CASES
Island of Palmas Arbitration (1928), Max Huber, Arbitrator
• Sovereignty in the relation 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 function of a State
Western Sahara Case (1975, Advisory Opinion of ICJ)
• Legal ties of territorial sovereignty over people or land must be distinguished from ties of allegiance (loyalty/duty), in the case of persons, and mere customary rights in relation to land. On the other hand, state activity on an adequate scale, showing conclusively the exercise of authority, is one mark of the existence of territorial sovereignty. (Corresponds Max Huber’s concept)
• Can a territory be acquired by use of force?
– Article 2(4) of the UN Charter
• “Territory of a state shall not be the subject of an acquisition by another state resulting from the threat or use of force”
• Treaties for and agreements in regard to the determination of territory ?
• What about for sea ?
• Two aspect of territory
– Positive
• Exclusivity of territory
• Protection of encroachment
– Negative
• Protect the right of other states
• Detain encroachment
Dispute?
• May be over the status of country itself, that is, all the territory : eg. Arab claim against Isreal … other ??
• May refer to a certain area on the borders of two or more states, eg. Somali claims against certain part of Kenya or Ethiopia
• May be other grounds – occupation, prescription, self-determination, historical demands .. Etc.. Etc..
Divisibility of Territorial sovereignty
• Sometimes said territorial sovereignty is indivisible
– But number of instances
– Sovereignty may be shared jointly by two or more powers – eg. Condominium
– Lease of pledge (lease of chinese territory to Russia, France, Germany and Great Britain)
– Lease of British bases in the West Atlantic to the USA
– Lease of Hongkong
• Examples of Condominium or res communis
– Antarctica – de facto – governed by parties to the antarctic treaty
– Pheasant island – France and Spain
– Half (on Arabian Peninsula) by Oman and Ajman
– Jamaica and Colombia share a maritime condominium