Territorial Jurisdiction & Sovereignty

8/8/2019 Territorial Jurisdiction & Sovereignty

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Territorial Jurisdiction &sovereignty

West Bengal

IIT Kharagpur

Rajiv Gandhi School of Intellectual Property Law

Assistant Professor

Dr. Raju KD

1KDR/IIT KGP/RGSOIPL-2008


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Statey Settled population

y Definite territory

y Capacity to enter into legal relations

KDR/IIT KGP/RGSOIPL-2008 2


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State territoryy Essential element of statehood is the occupation of a

territorial area.

y It includes geographical area of earths surface overwhich supreme and exclusive sovereignty of a stateextends.

y It not only includes the surface of earth, territorial

waters and air space over the territorial land and water,subsoil and underneath.

y Territory is a fundamental concept of internationallaw.



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Kelseny Defined state territory as:

y a space within which the acts of the state, and

specially its coercive acts, are allowed by generalinternational law to be carried out, a space within

which the acts of a state may legally be performed.



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Sovereignty : Max HuberyArbitrator in Island of Palmas Arbitration

y sovereignty in the relation between states signifies

independence.y Independence in regard to a portion of the globe is the

right to exercise therein, to the exclusion of any otherstate, the function of a State.



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Acquisition of territoryy Cession

y Occupation

yAnnexationy Prescription

y conquest

yAccretion

yAcquiescence, recognition and estoppel

y Plebiscite.



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Modes ofAcquisitiony Cession: Transfer from one state to another, usually by

treaty.

y May be voluntary by a treaty.

y If any treaty is concluded by use of force or threat is void.

y Violation of UN charter and A.52 of the Vienna Conventionof 1969.

y Voluntary session sale of Alaska by Russia to US in 1867.

y Exchange of Heligoland for Zanzibar by Germany andGreat Britain in 1860.

y Island of Palmas case US-Holland-

y All sovereign rights ceded transfer of sovereignty.


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Occupationy Occupation ofterra nullius:

y Never belonged to anyone, or

y

Abandoned (intentionally, not just through neglect)y Occupied (with intent)when place under effective control

y Look at nature of territory

y Does anyone else claim it

y Annexation display of effective control and authority.

y Occupation and annexation are based on an act ofeffective apprehension of territory.



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Occupationy Eastern Greenland Case PCIJ

y Two elements required

y 1. an intention or will to act as sovereign.y 2. the adequate exercise or display of sovereignty.

y Dispute by Norway and Denmark Denmark provedthese criteria.

y Physical assumption of control is necessary.

y Minquiers and Ecrehos Case ICJ actual exercise ofstate function.



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Continuityy Island of PalmasArbitration:

y Mere act of discovery by one state without more is not

sufficient to confer a title by occupation.y Continuous and peaceful display of authority can

confer title.

y Theory of continuity.

y Claim of North pole and South pole.



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Annexationy Two circumstances:

yWhere the territory annexed has been conquered or

subjugated by the annexing state.yWhere the territory annexed is in a position of virtual

subordination to the annexing state at the time thelatters intention of annexation is declared.

yAnnexation of Korea by Japan in 1910.y By force against the UN charter, not recognised by

other states.



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Modes ofAcquisitiony Prescription

y Immemorial exercise of sovereignty or de facto

exercise of sovereignty for a long period of time.y Belonged to another state

y Control with intent

y Probably requires other state to agree

y Operations of NatureyAdjudication: mainly limited to drawing line


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Conquesty Use of force legal or illegal.

yA.2(4) of the UN Charter prohibits use of force against

any state.y Occupation doesnt transfer sovereignty.

y Conquest of Garmany by Allies in 1945.

y S.C. resolution inadmissibility of force for acquisition

of territory.y S.C. Reslution 662 Iraqi annexation of Kuwait

illegal.



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AccretionyAccretion addition to a portion of territory.

y New territory is added through natural causes.

yAlluvial depositiony Sudden and abrupt transfer of soil.

y River side depositions



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Modes ofAcquisitiony Conquest: An aggressor cannot acquire territory by

conquest [Stimson Doctrine]

y

How about the state attacked???y Does not apply to civil wars

yAcquiescence, recognition, and Estoppel

y Acquiescence requires express statement

y Recognition by third partiesy Estoppel requires detriment


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Acquiescencey The common law doctrine ofestoppel by

acquiescence is applied when one party gives legal

notice to a second party of a fact or claim, and thesecond party fails to challenge or refute that claimwithin a reasonable time. The second party is said tohave acquiesced to the claim, and is estopped fromlater challenging it, or making a counterclaim. Thedoctrine is similar to, and often applied with, estoppelbylaches.



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Modes ofAcquisitiony Political Arguments: evidence of presumption of

effective occupation

y

Geographical contiguityy Historical continuity

y Self-determination

y Minor Rights

y Condominium: agree to joint sovereigntyy Lease


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Modes ofAcquisitiony Servitudes: territory belonging to one made to serve

the interests of another

y

Run with the land, change of sovereign do not affect


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Loss of territorial sovereigntyy Dereliction: abandonment of all rights

y Revolt: cession of territory



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Sovereignty over air spacey First World War: airspace over open sea and over

unappropriated territory was absolutely free.

y

A. 1 of the Paris Convention of 1919 for the Regulationof aerial Navigation, whereby the parties recognisedthat every state has complete and exclusive sovereigntyover the air space above its territory and territorial

waters.y freedom of innocent passage

y Havana Convention on Commercial Aviation - 1928



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Boundariesy Boundary is not only merely a line in a borderland.

y Rann of Kutch Arbitration between India and Pakistan

1965.y Pakistan claimed that Rann had always been a part of

Kutch territory.

y India claimed effective authority.

y

India won most of the claims and the boundary was fixedon the Northern edge of the Rann.

y Read: The Rann of KutchJ. Gillis Wetter The AmericanJournal of International Law, Vol. 65, No. 2 (Apr., 1971), pp.346-357.



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Riversy Passing through one state.

y More than one state.

yFreedom of navigation:

y At the time of peace only.

y Countries through which the river passes have the right ofpassage.

yFreedom of passage is without any limitation.

y Treaty of Paris 1814

y Vienna congress: 1815

y Peace Treaties 1919-1920.



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Riversy 1930 League of Nations convention

y 1956 Bangkok Convention

y 1960 Geneva Conventiony Lake Lanoux Arbitration France Spain

y There was no duty on a riparian state under customaryinternational law to consult, or obtain the prior

agreement of a co-riparian, as a condition precedent ofits right to begin new river works, although in carryingout the project it must take into account, an areasonable manner interest of co-reparian.



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Thank you


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