States and Territory

AuthorJohn H. Currie
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].
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.

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