A GROUP PRESENTATION BY MEMBERS OF GROUP SIX (6)

ATAKPA, UYOBONG ADAM- 10/LA/1074

ISIKIMA, PAMELA GLORY – 10/LA/1065

EMMANUEL, MICHAEL MATTHEW- 10/LA/1075

GRAHAM, ESTHER MFONABASI- 10/LA/1108

AKPAN, NSIMA NDIFREKE – 10/LA/1129

UDOFIA, DANIEL HANSON-11/LA/1269

EFFIONG, AKANIMO- 10/LA/1140

NKIM, LOUIS- 10/LA/1107

SUBMITTED TO

BARR (MRS) IDORENYIN EYO

LECTURER-IN-CHARGE

JIL516: PUBLIC INTERNATIONAL LAW I

FACULTY OF LAW

UNIVERSITY OF UYO, UYO

MARCH, 2015

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QUESTION:

The United Nations charter clearly uphold the territorial

integrity of member’s states. Analyse this in light of

acquisition of and loss of state territories.

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INTRODUCTION

The state has four essentials namely population territory,

government and sovereignty. Territory is one of the four

elements which a state in order to be an international person

must possess. The state must have a fixed territory. The

territory of the state includes not only land within its

jurisdiction, but also the natural resources, Lakes, rivers and

the marginal sea. The air space above the land is also part of

the territory.

State territory is that definite portion of the surface of the

globe which is subjected to the sovereignty of the state. The

state jurisdiction is exercised by the state over persons and

property within a particular territory.

The territory is recognized as more than just a necessary

requirement of statehood. The territory is the exclusive zone

in which the political independence of a state can find its

expression and where foreign governments may not – as a

matter of principle–interfere. As a consequence of this the

concept of territorial integrity emerged as a general principle

of international law in the middle of the 19th century.

Territorial integrity implies territorial sovereignty, political

independence and equality of states. It is the principle under

international law that postulates that nation-states should not

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attempt to promote secessionist movements or to promote

border changes in other nation-states. Conversely it states that

imposition by force of a border change is an act of aggression.

Territorial integrity requires more than protection against

permanent changes to borders, but demands protection

against all sorts of interventions into a state’s territory from

the outside.

The law connects territorial integrity and political

independence because the territory is recognized as the

spatial framework and necessary condition for the realization

of political independence. Territorial integrity is, as H.

Lauterpacht put it, “especially where coupled with ‘political

independence,’ […] synonymous with territorial inviolability.”

It must be noted that titles of acquisition and loss of territorial

integrity in present day international law are based on acts of

occupation, conquest, cession, prescription, accretion etc.

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MODES OF ACQUISITION OF STATE

TERRITORIES

Following are modes of acquiring territory.

1. Occupation

2. Prescription

3. Accretion

4. Cession

5. Annexation/ conquest

6. Lease

7. Pledge

8. Plebiscite

9. Purchase

10. Newly born states

11. Adjudication

1. OCCUPATION:

Occupation in international law means an act of appropriation

by a state over a territory which does not belong to any other.

It is however worthy to note that this particular mode of

acquisition of state is no longer in vogue, reason being that

there exists no virgin land that is not owned by any person or

state. This is the oldest mode of acquisition of state territory.

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Occupation is a method of acquiring territory which belongs to

no one (terra nullius) and which may be acquired by a state in

certain situations.

The occupation must be by a state and not by private

individuals, it must be effective and it must be intended as a

claim of sovereignty over the area.

The high seas cannot be occupied in this manner for they are

res communis, but vacant land may be subjected to the

sovereignty of a claimant state.

It relates primarily to uninhabited territories and islands, but

may also apply to certain inhabited lands.

ESSENTIALS ELEMENTS FOR EFFECTIVE OCCUPATION:

There are two essential elements that constitute an effective

occupation of that state over another territory.

(i) Direct evidence of possession.

(ii) An exhibition of actual authority.

In Netherlands v. US (Island of Palmas case)1 - As a result of

the Spanish-American War 1898, Spain ceded the Philippines

to the United States by the treaty of Paris of that year. In 1906,

a united state official visited the island of Palmas (or Miangas),

which the united states believed to be a part of the territory

ceded to it and found, to his surprise a Dutch flag flying there,

1 Island of palmas arbitration (22 AJIL (1928) 374)

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Palmas lies about 50 miles southeast of cape san Augustin on

the island of Mindanao. It is two miles long and less than a mile

wide. In 1928, it had a population of less than 1,000 and was

of negligible economic, military or other importance.

Nonetheless, the Netherlands and the United states referred

the question of sovereignty over the island to arbitration.

It was held that for acquiring sovereign over a particular

territory effective occupation is necessary.

Andamas Island- issue: Here it is stated that the mere

proximity to the land does not give another country to claim

title over it.

See also: Eastern Greenland Case (Norway v. Denmark)2

(2)PRESCRIPTION:

If a state exercises control over a territory continuously for a

long time without any interruption and possess it defacto, the

concerned territory becomes part of that state. This mode is

known as prescription international law does not fix any

certain time so as to a title by prescription. However, length

time required for prescription is a matter which should be

decided by international court of justice or tribunal where the

case is brought for adjudication.

2 PCIJ (1923) series A/B No 53

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CONDITIONS TO BE FULFILLED BEFORE A TERRITORY

CAN BE SAID TO ACQUIRED BY PRESCRIPTION

In the case of U.S.A. V Mexico (Chamizal Arbitration)3 it

was stated that before a state may be said to have acquired

some territory by prescription these four (4) conditions must

be fulfilled:

(i) Where occupying state has not accepted the sovereignty of

any other state over the said territory.

(ii) Possession should be peaceful.

(iii) There should be no interruption.

(iv) Possession should be for a definite period not less than 20

years.

In this case by a treaty of 1848, the Rio Grande was made,

for part of its length, the boundary between the United States

and Mexico. By 1911, the river had changed its course leaving

a tract of land of about 600 acres-the Chamizal tract- between

the old and the new beds of the river. On the United States side

of the bed over which both states claimed sovereignty. The

commission decided that the part of the tract that had resulted

from a gradual process of accretion belonged to the United

States but that the part of it that had resulted from flood in

1864 belonged to the Mexico. The case was decided on the

basis of the relevant treaty provisions; an argument based on

3 (1911) 5 A.J.I.L. 782

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prescription was however put by the United States and

examined by the commission.

(3) ACCRETION:

This is the formation of new lands (islands) because of natural

acts such as volcanoes, floods etc.

Accretion denotes the increase which land bordering on a river

or on the sea undergoes through the silting up of soil, sand or

other substance, or the permanent retiral of the waters. This

increase must be formed by a process so slow and gradual as

to be, in a practical sense, imperceptible, by which is meant

that the addition cannot be observed in its actual progress

from moment to moment or from hour to hour, although, after

a certain period, it can be observed that there has been a fresh

addition to the shore line. The increase must also result from

the action of the water in the ordinary course of the operations

of nature and not from some unusual or unnatural action by

which a considerable quantity of soil is suddenly swept from

the land of one man and deposited on, or annexed to, the land

of another.

The fact that the increase is brought about in whole or in

part by the water, as the result of the employment of artificial

means, does not prevent it from being a true accretion,

provided the artificial means are employed lawfully and not

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with the intention of producing an accretion, for the doctrine

of accretion applies to the result and not to the manner of its

production.

A new territory can be acquired through the process of

accretion.

See: U.S.A. V Mexico (Chamizal Arbitration)4.

FORMS OF ACCRETION:

(i) Artificial.

(ii) Natural.

(5)CESSION:

Cession is the transfer of sovereign over a definite territory by

one state to another state.

It is the surrender of a territory of one country to another.

FORMS OF CESSION:

(i) Voluntary.

(ii) Under compulsion.

Examples: India ceased Berubari and gave it to Pakistan

The Russia-Crimea case is yet another example.

4 (1911) 5 A.J.I.L. 782

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(6)ANNEXATION/CONQUEST:

It is the acquisition of the territory of another. Annexation can

either be voluntary without the use of force or may be through

compulsion by the use of military force.

Examples: - China’s annexation of Tibet

- Iraq’s invasion of Kuwait

- Sikkim an independent country, voted to join

and get annexed to India.

U.N Charter on Annexation:

The forceful acquisition of the territory of another has been

greatly condemned by UN charter by Article 2(4) under which

member state cannot acquire territories by annexation.

(6) LEASE:

A state may give territory to another state under lease for a

certain period.

Example: - China leased Hong Kong to Great Britain for a

period of 99 years.

- Some islands of Cyprus are leased to Great

Britain.

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(6) PLEDGE:

Pledge is also a mode of acquiring state territory. Under some

circumstances a state is compelled to pledge part of its

territory in return of certain amount of money.

A state can pledge a land to another for a loan which should be

repaid to her with interest on a certain date.

Example: Republic of Genoa pledged the island of Corsica to

France.

(7) PLEBISCITE:

A plebiscite is a vote of the people that expresses their choice

for or against a proposed law or enactment, which, if adopted,

will work a change in the constitution that is beyond the

powers of the regular legislative body.

With regards to it being a Mode of acquiring new territory

Plebiscite is a decree of the people to join a territory with

another State

The plebiscite is hailed by many as the most democratic

interpretation of the concept of self-determination. But

plebiscite means subjection, subordination of minority to a

majority.

Example: South Sudan voted to leave Sudan.

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- Maharaja of Kashmir made a treaty to add Kashmir

to India but Pakistan claimed plebiscite.

(8) PURCHASE:

This is the process of paying money to another territory by one

country for the purpose of transferring ownership to that

territory. It is simply the selling of a territory by one to

another.

Example: Soviet Russia sold Alaska to USA

(9) NEWLY BORN STATES:

Territories get separated and they themselves declare

independence.

Example: Soviet Russia split into many individuals countries.

Bangladesh declare its independence from Pakistan.

(10) ADJUDICATION:

The legal process of resolving a dispute. The formal giving or

pronouncing of a judgment or decree in a court proceeding;

also the judgment or decision given. The entry of a decree by a

court in respect to the parties in a case. It implies a hearing by

a court, after notice, of legal evidence on the factual issue(s)

involved. The equivalent of a determination. It indicates that

the claims of all the parties thereto have been considered and

set at rest.

Example: Nigeria-Bakassi case.

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MODES OF LOSING TERRITORY

Following are modes of acquiring territory:

1. Cession

2. Operation of nature(accretion)

3. Subjugation

4. Renunciation

5. Independence to a colony

6. Prescription

7. Occupation

8. Dereliction/Abandonment/Relinquishment

9. Revolt

10. Lease

11. Pledge

12. Plebiscite

13. Disappearance

THE EFFECT OF THE UNITED NATIONS CHARTER ON THE

ACQUISITION AND LOSS OF STATE TERRITORIES.

The United Nations Charter being the foundational treaty of

the inter-governmental organization called the United

Nations, signed at the San Francisco War Memorial and

Performing Arts Center in San Francisco, United States, on 26

June 1945, by 50 of the 51 original member countries

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recognises and provides for the protection of territorial

integrity of every member state under the following

provisions:

i) Article 2(1)

ii) Article 2(4) and

iii) Article 2(7)

ARTICLE 2(1)

‘‘The Organization is based on the principle of the

sovereign equality of all its Members’’

ARTICLE 2(4)

‘‘All Members shall refrain in their international

relations from the threat or use of force against the

territorial integrity or political independence of any state,

or in any other manner inconsistent with the Purposes of

the United Nations.’’

ARTICLE 2(7)

‘‘ Nothing contained in the present Charter shall

authorize the United Nations to intervene in matters which

are essentially within the domestic jurisdiction of any

state or shall require the Members to submit such matters

to settlement under the present Charter; but this principle

shall not prejudice the application of enforcement

measures under Chapter VII.’’

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From the foregoing the UN charter clearly frowns at the

use of force i.e conquest which is one of the mode of acquisition

of state territory. However, the UN charter is silent on other

internationally recognised modes of acquisition and loss of

state territories.

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CONCLUSION

The concept of territorial integrity signifies the fact that within

a particular territory, the principle of sovereignty and

inviolability are important element of a state(s).

While, the UN charter clearly upholds the afore-stated

position, it however prohibits the use of force or aggression in

acquiring territories of another state, but tacitly accepts the

various internationally acclaimed modes of acquisition

already discussed in the work.

Thus, states or a state can acquire the territory of another state

as long as it does not contravene the provisions of the charter.