Please enable JavaScript.

Coggle requires JavaScript to display documents.

Territorial Sovereignty - Coggle Diagram

- - - - Terra Nullius:
        
        "territory without a master" - a term used in public international law to describe a space that may be inhabited but does not belong to a State (the land does not belong to anyone)
      - Common Heritage of Mankind:
        
        SItuations where jurisidictional rights are shared by all states, or just by those having particular/recognised interest
        
        Area involved will be "beyond the limits of national jurisdiction
        
        States may enjoy certain jurisdictional rights not amounting to sovereignty
        
        Area is said to be res communis - communal
        
        Access, exploration or exploitation permitted however such activity is strictly regulated
        
        Areas cannot be lawfully claimed / appropriated by any state/private equity
      - Acquisition vs Recognition:
        
        Acquisition - How a State acquires its own territory
        
        Recognition - the traditional approach of establishing new states by considering new facts
- - - - Burkina Faso v Mali Frontier dispute:
        
        ICC affirmed UPJ emphasising its role in maintaining international peace and security
  - - - Pedra Branca case (Malaysia v Singapore):
        
        ICJ considered Singapore's maintenance of a lighthouse as a relevant effectivité in awarding sovereignty over the island
      - Ligitan and Sipadan case (Indonesia v Malaysia):
        
        ICJ gave weight to Malaysia's regulation of turtle egg collection as an effectivè supporting its claim to the island
- - - - Could be for money
        
        Transfer of Alaska from the USSR to the USA
        
        Settlement of a border dispute
        
        Part of a more general arrangement
        
        1984 agreement between UK and China, whereby the former will transfer sovereignty over the Crown Colony of HongKong to the latter
        
        Maxim - Nemo dat quod non habet applies State cannot transfer what it does not have
        
        To gain title to the territory ceding State must be the legitimate sovereign
        
        Island of Palmas Case:
        
        The US could not acquire sovereignty to the island under the Treaty of Paris if Spain had not right to the territory at that time
        
        Normal rules relating to formulation of treaty apply to treaties of cession
        
        There must be no duress, fraud or corruption in the procurement of the treaty
        
        Art 52 VCLT 1969 - 'treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the UN
        
        This is a form of customary law
    - - What is Terra Nullius:
        
        A territory belonging to no one at the time of the act alleged to constitute occupation
        
        Territory may never belonged to any State, or it might've been abandoned by the previous State
        
        Western Sahara Case:
        
        Facts: Western Sahara colonised by Spain. 1966 - General Assembly, decolonisation, right of self-determination. Spain agreed, hold a referendum of the people of Western Sahara. Morocco claim, historical title. GA asked for court advisory opinion
        
        Held: Western Sahara inhabited by people were sociailly and politically organised, NOT TERRA NULLIUS at the time of Spanish Colonisation. Morrocco claim, no evidence
      - Effective occupation:
        
        Requirement of effective occupation - increasingly strict in IL as unoccupied territory has become increasingly rare
        
        2 elements:
        
        The intention and will to act as sovereign
        
        The peaceful and continuous exercise of sovereign activity
        
        Who can acquire? A sovereign State, not a private person
        
        (1) Intention to act as a sovereign - Clipperton Island & Eastern Greenland case:
        
        Court emphasised that the actual display of sovereign must be accompanied by intention to act as sovereign
        
        State is exercising authority in the territory
        
        In both cases, where extensive display of authority is ot possible - State must make clear its sovereign intentions in other means
        
        (2) Peaceful and continuous exercise of sovereign activities - Island Palmas case:
        
        Peaceful display of territorial sovereignty is as good as title
        
        (1) Must be peaceful and continuous
        
        (2) Until critical date
        
        (3) Governed by inter-temporal law
        
        Must be peaceful and continuous:
        
        Not challenged by other States
        
        Mere protest - does not lose peaceful character (in occupation not prescription) - but consistency protest - not rebutted by claimant State-may disturb the peace
        
        Until critical date:
        
        Must be continuous and ongoing - not a one time display
        
        Degree of continuity - may vary each case
        
        Exist up to the 'critical date' - date where the location of territorial sovereignty is decisive (State which can demonstrate effective title in the period = superior claim)
        
        Eastern Greenland case - critical date proven by Denmark
        
        Island of Palmas - critical date was the date of peace of treaty ebtween the US and Spain
        
        Governed by inter-temporal law:
        
        Rules of IL - existed at the time and not as they exist today
        
        Island of Palmas case - Effective of discovery - determined by IL on force in 16th century
    - - Kasikili/Sedudu Island case:
        
        Possession must be exercised sovereign, peaceful and uninterrupted, public and endure for a certain length of time
      - Elements:
        
        Possession of actual sovereignty
        
        Possession must be peaceful and uninterrupted
        
        accompanied by acquiescence - part of the losing State
        
        case: Island of Palmas - absence of Spanish protest against Dutch acts on the island
        
        Possession must be "public"
        
        Open and public-acquiescing state may have knowledge of it
        
        Possession MUST be for a certain length of time
        
        case to case basis
- - - - Recognition:
        
        Eastern Greenland case:
        
        "to the extent that these treaties constitute evidence of recognition of her sovereignty over Greenland in general, Denmark is entitled to rely on them
        
        Estoppel:
        
        Temple of Preah Vihear case
  - - - Palestinian wall advisory opinion:
        
        Erga omnes - applicable to all and valid against all
- - - - An exception to occurence in IL as limited to a defined period occurred with the Panama Canal
        
        The strip fo land - leased to US in 1903 "in perpetuity"
        
        But by the 1977 Panama Canal Treaty, sovereignty over the canal zone was transferred to Panama
        
        US has certain operating and defensive rights until the treaty ended in 1999