State jurisdiction over land territory

• Author: John H. Currie, Craig Forcese, Joanna Harrington, Valerie Oosterveld
• Pages: 309-380

309

CHAPTER 4

STATE JURISDICTION OVER LAND

TERRITORY

With very few exceptions, all of the Earth’s landmasses are subject to the full and exclusive

jurisdiction, or sovereignty, of one state or another. We employ readily the expressions

“sovereignty,” “sovereign title,” or “territorial sovereignty” to describe the typical jurisdic-

tional relationship bet ween states and land. Consider the following description of these

concepts: “The essence of territorial sovereignty is contained in the notion of title. This

term relates to both the factual and legal conditions under which territory is deemed to be-

long to one particular authority or another. . . . [T ]he word ‘title’ comprehends both any evi-

dence which may establish the existence of a right and the actual source of that right.”2 As

we have already examined the meaning of sovereignty elsewhere, in this chapter we focus

on the various international legal principles governing acquisition of sovereign title to land.

A. INTERTEMPORAL LAW AND SOVEREIGN TITLE TO LAND

How is it that states acquire sovereignty over land? One observer has noted that the inter-

national legal rules on state acquisition of territory “have often (although not always) had

the effect of legitimising the results of the exercise of power.”3 This should come as no

surprise, given that a principal source of international law, as we have seen, is the practice

of states accompanied by a conviction in its legality. As a result, the answer to the question

posed above has, along with the practice and opinio juris of states, changed over time, such

that some previously lawful modes of territorial acquisition are now rejected in modern

international law. Indeed, it is probably not an overstatement to say that many claims made

by states to at least some of their territory are predicated in part on past acts of acquisition

that, if committed today, would be regarded as illegitimate in modern law. Acquisition by

conquest is a key example. However, retroactively reversing the results of these now unlaw-

ful means of territorial acquisition would, to put it mildly, be immensely diff‌icult. It would,

moreover, be inconsistent with the general practice and opinio jur is of states on the mat-

ter, and hence with international law. Understanding the international law of territorial title

requires, therefore, an appreciation of a concept we have already introduced: intertemporal

law. The concept, in relation to sovereignty over territory, has been described as follows:

One of the most important results of this universalization of international law [after the

Treaty of Westphalia] has been the doct rine of intertemporal law. . . . The doct rine of

intertemporal law [was] def‌ined, in the . . . Island of Palmas arbitration, as follows: “. . . a

2 Malcolm N Shaw, International Law, 6th ed (Cambridge: Cambridge University Press, 2 008) at 490.

3 Ibid at 489.

310 INTERNATIONAL LAW: DOCTRINE, PRAC TICE, AND THEORY

juridical fact must be appreciated i n 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 settled.” The

doctrine is more fu lly stated, however, by Judge Huber later in the sa me case:

As regards t he question which of dif ferent legal systems prevail ing at successive per-

iods is to be applied in a particular case (the so-cal led intertemporal law), a distinct ion

must be made between the creation of right s and the ex istence of rights. The same

principle which subjects the act creative of a right to the law in force at t he time the

right arises, dema nds that the exist ence of t he right, in other words its continued

manifest ation, shall follow t he conditions required by the evolution of law.

There are therefore t wo elements, the f‌irst of which is that acts should be judged in the

light of the law contemporar y with their creation, and the second of which is that rights

acquired in a valid manner according to the law contemporaneous with that creation may

be lost if not maintained in accordance with the c hanges brought about by the develop-

ment of internationa l law. The f‌irst element of t he doctrine of inter temporal law would

seem to have been widely accepted in international law. . . . The second element — name-

ly, that the mere acquisition of rights at the time of their creat ion is not enough, but that

they must be maintained according to the evolution of international law — has aroused a

good deal of controversy among the expe rts. . . .4

The doctrine of intertemporal law therefore accepts that history may not be rewritten

every time the law changes, and that what are today perceived as yesterday’s wrongs can-

not now be undone without engendering profound instability and risking widespread con-

f‌lict. Such instability and conf‌lict would, moreover, likely be perpetual, as international

law will, of course, continue to evolve.

As a result, the doctrine of intertemporal law has its critics. It has been condemned

as a “political handmaiden to the politics of power of the imperial states who set out on

a worldwide conquest of territory.”5 It could also be seen as one of those rules referred to

above that have “the effect of legitimising the results of the exercise of power.”6 Yet, is this

necessarily so? Consider the “second element” mentioned above. Why would intertem-

poral law not legalize the maintenance today of a colonial empire if that empire was f‌irst

established at a time when it was internationally lawful to do so? Is the doctrine merely a

guarantee against retroactive application of modern law, or are its effects more complex?

As we proceed through the materials on acquisition of sovereignty over land, consider

the extent to which the doctrine of intertemporal law is a “handmaiden to the politics of

power” or is, rather, a more nuanced conceptual tool designed to prevent historic events

from producing modern chaos.

4 TO Elias, “The Doc trine of Intertemporal Law” (1980) 74 Am J Int ’l L 285. See also Article 13 of the ILC

Articles on State Resp onsibility for Internationally Wrongful Ac ts, discussed in Section D of Chapter 12.

5 Joshua Castellino & Steve Allen, Ti tle to Territory in Int ernational Law (Burling ton, VT: Ashgate, 2003) at 3.

6 A John Simmons, “On the Territorial Rights of State s” (2001) 35 Philosophical Issues (Supp to Noûs)

300 at 321, n 13.

Chapter 4: State Jurisdi ction over Land Territor y 311

In the following sections, we subdivide the means by which sovereignty over land

may be acquired into several categories, beginning with acquisition of legal sovereignty

through “political” events.

B. ACQU ISITION OF TERRITORIAL SOVEREIGNT Y THROUGH POLITICAL EVENTS

1) The Relevance of Historical Context

Since its earliest days, international law has provided rules on what acts legitimately

give a people sovereignty over land. Classic “political” methods by which states have

asserted legal territorial sovereignty have included discovery (whether or not followed by

effective occupation), effective occupation, prescription, cession, and conquest. While

effective possession or occupation has always been, and continues to be, the key basis

in international law for asserting sovereign title to land, it should be noted that the legal

doctrines governing the means by which this possession is established — and the nature

and extent of the occupation required or permitted — have shifted with time. However,

as seen above, even those means that are now discredited — such as discovery and con-

quest — continue to have relevance in modern international law through application of

the doctrine of intertemporal law. It is thus necessary to understand both those bases of

title that have been discredited in modern international law, as well as those that today

receive its approval. We review each in turn below.

Before doing so, it is important to recognize that most now-obsolete bases for as-

serting sovereignty over territory were legally constructed in such a way as to legitimize

land acquisition by the powerful. This approach was abetted by a heavily ethnocentric ap-

proach to def‌ining the legal concepts of statehood and sovereignty. Consider, for example,

the following comments on the early use of international law as a vehicle for colonialism

in Africa:

Early inter national legal doct rine itself appeared to sanction colonization, t he acquisition

of territory by a recognized state and the imposition of its sovereignty over such terr itory.

Such tak ing could occur as occupation, subjugation, or cession. In reality, t he coloniza-

tion of A frica utilized any of the t hree methods, or a combination thereof, alt hough ac-

cording to internat ional law at the time only occupation was purportedly legal, since no

recognized states exis ted in Africa. . . .

Without much knowledge about t he continent, early European jurists a nd publicists

had decided that much of Africa was a no -man’s land th at could be brought under legal

occupation. Territories inhabited by “persons who are not recognized as belongin g to the

great family of states to whom the international law applies,” or “savage, barbarous tribe s”

belonged as of right upon discovery to t he “civil ized and Christian nation.” . . .

. . . Ru les of “international law” exclusively crafted a nd employed by Europeans to

extend their domi nation of other parts of the world could not have any lega lity in Africa,

particu larly if the effect of their application meant the loss of sovereignty. A Lagos paper

captured the African interpretat ion of t he legality of the Ac t of Berlin in shar p condem-

natory langu age: “the world has, perhaps, never witnessed a robbery on so l arge a scale.

Africa is helpless to prevent it. . . . It is on the cards that this ‘Christian’ business can only

end, at no distant date, in the ann ihilation of the natives.”