States and Territory

• Author: John H. Currie
• Pages: 265-331

265

CHA PTER 7

STATES AND TERRITORY

A. INTRODUCTION

We turn now to a more detailed consideration of the relationship be-

tween states and terr itory. As we have already seen,1 the link between

a state and def‌ined territory is crucial to its existence as a person in

international law.2 Indeed, the very notion of statehood is so deeply

rooted in the requirement of territory that the existence of a state with-

out some m inimal territory over which it enjoys sovereignty is v irtu-

ally unthinkable in the Westphalian system of intern ational law. This

continues to be the case even in the UN era. The U N Charter itself is

founded upon the sovereign equality of all of its members and the obli-

gation of those members to respect one another’s terr itorial integ rity.3

The massive decolonization process in the second half of the twentieth

century, resulting in t he establishment of scores of newly independent

1 See Chapter 2, Se ction B(2)(b).

2 J. Crawford, The Creation of States i n International Law, 2d ed. (Oxford: Cla r-

endon Press, 20 06) at 46 and 48; M.N. Shaw, International Law, 5th ed. (Cam-

bridge: Cambr idge University Press, 2003) at 409 –10.

3 Charter of the United Nat ions, 26 June 1945, Can. T.S. 1945 No. 7 (entered i nto

force 24 October 1945) [UN Charter], Articles 2(1), (4), and (7); Declaration on

Principles of Inter national Law Concer ning Friendly Relations and Co-o peration

among States in Accordance wi th the Charter of the United Nations, GA Re s. 2625

(XXV), UN GAOR, 25th Sess., Supp. No. 28, UN Do c. A/8028 (1971) [Frie ndly

Relations Declarati on].

PUBLIC INTERNATIONA L LAW266

but territoria lly def‌ined states, also bears witness to the continuing

centrality in modern international law of the essentially territorial con-

ception of the state.

As we have also seen, the exclusive ability of a state to regulate

activities occurring in its territory, subject only to the st rictures of

international law, is the ultimate hallmark of a state’s independence

and, hence, of its sovereign status in international law.4 Thus , exclusive

possession of territory is not only required of a state as a matter of legal

def‌inition, it i s also one of the principal methods by which a state ex-

hibits its sovereignty and evidences its existence as a primary subject

of international law.

With so much at stake, therefore, it is not surprisi ng that the lawful

extent of state territory, and the means by which it may law fully be ac-

quired, have been among the principal preoccupations of intern ational

law throughout its history. Thi s chapter will therefore focus on the

principal legal doctrine s that have been developed in international law

to address both of these is sues. As we w ill see, the principles of sover-

eign equality and territorial integ rity not only def‌ine the importance

of territory to state s; they also ser ve, in a world inh abited by multiple

sovereigns, to li mit t he mea ns by which the extent of any one state’s

territory may be i ncreased at the expense of another’s.

Beyond the basic issues of the extent a nd acquisition of state ter ri-

tory, however, international law has also had to grapple with the nature

of the legal rel ationship between states and “territory” in t he broader

sense of the term. Aside from the relationship of sovereignty that exists

between a state and its own territory in the str ict sense, international

law also regulates the juri sdictional competence of states over cer tain

areas beyond their borders. For example, coastal states enjoy particular

jurisdictional rights over portions of t he sea, seabed, and airspace off

their coasts, but not generally over the “high seas” or other elements

of the “global commons,” in respect of which the community of all

states enjoys certai n rights. Moreover, the extension of human activity

to outer space and the various “celestial bodies” of our solar system

has also required t he development of new legal regi mes governing the

permissible jurisdictional reach of state s in such areas.

An overal l as sessment of these va rious developments reveals that

international law has developed roughly four broad types of relation-

ship between states and terr itory in the larger sen se, as follows:

1) Sovereign State Territor y: This includes land territory (together with

an y i sla nd s), i nl and ri ver s a nd l ak es a nd , i n th e c as e of coa st al sta te s,

4 See Chapter 2, Se ction B(2)(d).

States and Territor y 267

internal coastal waters and a thin band of coastal waters known as

the “territorial sea,”5 all o f which com e under t he full r ange of ju ris-

diction al competencie s recognize d by inte rnational law as accru ing

to the territorial sovereign. Essentially these areas are subject to

the exclusive and plenary sovereign juri sdiction of a single state,

subject only to limitations imposed by i nternational law.

2) Res Communis: Areas subject to the legal regime of the res communis

are not part of, nor may they be incorporated into, the sovereign

territory of any state. Being thus, by def‌inition, beyond appropria-

tion by states, they are essentially open are as available for unilat-

eral use and exploitation by all states, subject again to certain limits

imposed by international law. Because of their existence outside of

the sovereign territory of any state, these e xpanses of territory are

frequently referred to a s the “global commons.” The limitation im-

plied by th is expre ssion is somewhat misleading, however, in that

the regime includes not only the high seas but also, as we shall see,

certain portions of outer space.6

3) Res Nullius: Territory constituting a res nullius is similar to a res

communis in that it is not cur rently under t he sovereignty of any

state. However, the legal regime of the res nullius differs dramat-

ically from that of the res communis in that the former is subject

to potential appropriation by states and incorporation into their

sovereign territory, whereas the latter, by def‌inition, is not. The

concept of the res nullius is l argely of hi storical intere st given t hat

most land territory on the planet has by now been made the sub-

ject of claims of sovereignty by one state or a nother.7 Further, t he

concept has not been extended to outer space or the celestial bodies

of our solar system.8 The concept remains potentially signif‌icant,

however, in evaluat ing t he cur rent legal effects of past acts of oc-

cupation that are sought to be justif‌ied on this basis,9 and pos sibly

in the case where a state abandons ter ritory in such a way that it

reverts to the status of a res nullius.

4) Common Heritage of Humankind: This is a rel atively new legal re-

gime propounded ma inly by newly independent and developing

5 See furth er Section C(2)(b), below in this ch apter. One would have to include

archipelag ic waters to this enumerat ion in the case of an archipel agic state: see

further Se ction C(2)(c), below in t his chapter.

6 See furth er Section E, below in this ch apter.

7 There is, however, one sector of the Ant arctic which has not yet been cl aimed:

see furthe r Section D(3), below in thi s chapter.

8 See furth er Section E, below in this ch apter.

9 See, for example, Wester n Sahara, Advisory Opinion, [1975] I.C.J. Rep. 12.