State Jurisdiction over Land Territory

• Author: John H. Currie; Craig Forcese; Joanna Harrington; Valerie Oosterveld
• Pages: 297-372

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CHAPTER 4

State Jurisdiction over Land Territory

With very few exceptions, all of the Earth’s landmasses are subject to the sovereign jurisdic-

tion of one state or another. We employ readily the expressions “sovereignty,” “sovereign

title,” or “territorial sovereignty” to describe the typical jurisdictional relationship between

states and land. Consider the following description of these concepts: “The essence of ter-

ritorial sovereignty is contained in the notion of title. This term relates to both the factual

and legal conditions under which territory is deemed to belong to one particular authority

or another. . . . The word ‘title’ comprehends both any evidence which may establish the

existence of a right and the actual source of that right.” 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

eect of legitimising the results of the exercise of power.” 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 about 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

international law now rejects some previously lawful modes of territorial acquisition. 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 unlawful means of territorial acqui-

sition would, to put it mildly, be immensely dicult. It would, moreover, be inconsistent with

the general practice and opinio juris of states on the matter, 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 sover-

eignty 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 doctrine of intertemporal law. . . .

 Malcolm N Shaw, International Law, th ed (Cambridge: Cambridge University Press, ) at –

[Shaw].

 Ibid at .

 INTERNATIONAL LAW: DOCTRINE, PRACTICE, AND THEORY

The doctrine of intertemporal law [was] dened, in the . . . Island of Palmas arbitration, as

follows: “. . . 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

settled.” The doctrine is more fully stated, however, by Judge Huber later in the same case:

As regards the question which of dierent legal systems prevailing at successive periods

is to be applied in a particular case (the so-called intertemporal law), a distinction must be

made between the creation of rights and the existence of rights. The same principle which

subjects the act creative of a right to the law in force at the time the right arises, demands

that the existence of the right, in other words its continued manifestation, shall follow the

conditions required by the evolution of law.

There are therefore two elements, the rst of which is that acts should be judged in the

light of the law contemporary 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 changes brought about by the

development of international law. The rst element of the doctrine of intertemporal

law would seem to have been widely accepted in international law. . . . The second ele-

ment — namely, that the mere acquisition of rights at the time of their creation 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 experts.

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 cannot

now be undone without precipitating profound instability and risking widespread conict.

Such instability and conict would, moreover, likely be perpetual, as international law will, of

course, continue to evolve.

The doctrine of intertemporal law has its critics, however. It has been condemned as a

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

wide conquest of territory.” It could also be seen as one of those rules referred to above that

have “the eect of legitimising the results of the exercise of power.” Yet, is this necessarily

so? Consider the “second element” mentioned above. Why would intertemporal law not

legalize the maintenance today of a colonial empire if that empire was rst 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 eects 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 pro-

ducing modern chaos.

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.

 TO Elias, “The Doctrine of Intertemporal Law” ()  Am J Int’l L  at -. See also Article

 of the ILC articles on State Responsibility for Internationally Wrongful Acts, discussed in Section D of

Chapter .

 Joshua Castellino & Steve Allen, eds, Title to Territory in International Law: A Temporal Analysis (Burlington,

VT: Ashgate, ) at  [Castellino & Allen].

 A John Simmons, “On the Territorial Rights of States” ()  Philosophical Issues (Supp to Noûs)

 at , n .

Chapter : S tate Jurisdiction over L and Territory 

B. ACQUISITION OF TERRITORIAL SOVEREIGNTY THROUGH POLITICAL EVENTS

) 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 eective occupa-

tion), eective occupation, prescription, cession, and conquest. While eective 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 conquest — 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 inter-

national 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 assert-

ing 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 approach

to dening the legal concepts of statehood and sovereignty. Consider, for example, the fol-

lowing comments on the early use of international law as a vehicle for colonialism in Africa:

Early international legal doctrine itself appeared to sanction colonization, the acquisition

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

Such taking could occur as occupation, subjugation, or cession. In reality, the coloniz-

ation of Africa utilized any of the three methods, or a combination thereof, although

according to international law at the time only occupation was purportedly legal, since

no recognized states existed in Africa. . . .

Without much knowledge about the continent, early European jurists and publicists

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

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

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

belonged as of right upon discovery to the “civilized and Christian nation.” . . .

. . . Rules of “international law” exclusively crafted and employed by Europeans to

extend their domination of other parts of the world could not have any legality in Africa,

particularly if the eect of their application meant the loss of sovereignty. A Lagos paper

captured the African interpretation of the legality of the Act of Berlin in sharp condem-

natory language: “the world has, perhaps, never witnessed a robbery on so large 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 annihilation of the natives.”

Wars of conquest and fraudulent treaties with African rulers and societies were the

agencies for the eective imposition of European sovereignty. Occupation met with

“tough resistance” almost everywhere as wars of “invasion or pacication” were “dark

with slaughter and destruction.”

This legal heritage has had profound consequences for the structure of the international

community, and its reverberations continue to be felt to this day in the evolution of the rules

 Makau W Mutua, “Why Redraw the Map of Africa: A Moral and Legal Inquiry” ()  Mich J Int’l L

 at  and – [Mutua]. Reprinted with permission.