Territory and International Law
The Concept of Territory in International Law
Territory and territorial sovereignty are foundational concepts in international law. A territory refers to the geographical area that falls under the sovereign control and jurisdiction of a state or governing authority. Territorial sovereignty is the principle that a state has supreme authority and jurisdiction over a defined territory and the permanent population residing there.
International law recognizes territorial sovereignty as a key right of states. It provides states with exclusive authority over their territory and domestic affairs, while prohibiting intervention in the territory or internal matters of other states. The inviolability of a state’s territory is enshrined in Article 2(4) of the UN Charter, which prohibits the threat or use of force against the “territorial integrity or political independence of any state.”
Territorial sovereignty requires both an established territory over which a state can exert control and independence from external authorities. Changes in territorial control have major implications in international law, as they alter the distribution of sovereign authority and jurisdiction between states. International law has developed rules and processes for determining territorial boundaries, acquiring or transferring territory, and resolving disputes over territory between states.
This article will examine key concepts around territory and territorial sovereignty in international law. It will cover the development of territorial integrity norms, the relationship between territory and sovereignty, and processes for acquiring, transferring and demarcating territory. Special territorial issues like boundary rivers and outer space will also be explored. By clarifying the role of territory in the international legal order, we can better understand a foundational pillar of the global system.
Territorial Integrity
Territorial integrity emerged as a general principle of international law during the 19th century. This principle protects the territorial sovereignty of states against both forceful and non-forceful interventions.
Article 2(4) of the UN Charter specifically prohibits the threat or use of force against the territorial integrity of any state. This enshrines territorial integrity as a crucial component of the prohibition on the use of force in the UN Charter.
There has been some debate regarding whether the concept of territorial integrity applies to non-state actors in addition to sovereign states. However, the predominant view is that it applies primarily to states, as non-state actors generally do not possess defined territories or sovereignty. The principle aims to protect the territorial sovereignty and borders of existing nation-states.
Overall, territorial integrity remains a foundational principle of modern international law. It emerged to protect states from forcible annexation or dismemberment, and was formalized in the UN Charter as part of the post-WWII framework. This principle continues to play a vital role in maintaining international peace and security.
Territory and Sovereignty
The international rules regarding territorial sovereignty are rooted in the Roman law provisions governing ownership and possession. According to legal scholar Brierly, he defined territorial sovereignty as the existence of rights over territory rather than the independence of the state itself or the relation of persons to persons.
Territorial sovereignty has both a positive and negative aspect. The positive aspect refers to the full and exclusive authority a state has within its own borders. This is sometimes referred to as the completeness of territorial sovereignty. The negative aspect refers to the duty of non-intervention, meaning other states have a duty not to intervene in matters within the territorial sovereignty of another state. This negative aspect is crucial for maintaining international peace and security.
The issue of how a state actually acquires territory and sovereignty over it in international law is complex, and can be explained in both legal and political terms. There are modes of acquiring territory outlined in international law, but ultimately territorial sovereignty exists through recognition, prescription or acquiescence between states in the international system. Law and politics are intertwined on the matter of territory and sovereignty in international relations.
Acquisition of Territory
The process of how a state actually acquires territory in international law is complex and has aspects that are both legal and political in nature. There are several ways that territory can be acquired, such as through occupation, accretion, cession, and prescription.
Occupation refers to acquiring sovereignty over territory that is not under the authority of any other state, also known as terra nullius. This requires intent by the state to act as sovereign and exercise authority over the territory, as well as demonstration of actual control and administration. However, territorily inhabited by indigenous populations is not considered terra nullius, so this method can be controversial.
Accretion refers to gaining sovereignty when new land is formed along the coast through deposition of sediments or when land emerges from the sea. The new land then becomes part of the existing state territory.
Cession occurs when one state formally transfers sovereignty over territory to another state, often through treaties. This requires mutual agreement between the states.
Prescription is defined as the acquisition of sovereignty over a territory through continuous and undisturbed exercise of sovereignty over it during an extended period of time. This can be controversial and open to dispute.
The legal theories help explain and justify territorial acquisitions, but there are inevitably political factors as well. Power dynamics between states, conquest, and bargaining power in treaties can shape transfers of territory, sometimes overriding clear legal principles. Ultimately, international recognition and acceptance by other states is key in legitimizing territorial changes. The process involves an interplay of legal rules and political realities.
International Boundary Rivers
Special rules have evolved in international law with regard to boundary rivers. These rules recognize the equal rights of riparian states in the uses of the whole course of a river that traverses or forms the border between two or more states. There have been a number of legal principles developed through international judicial decisions and treaties to deal with the complex issues that arise regarding navigation, fishing, pollution, and ownership over segments or islands of the rivers.
One prominent example is the dispute between the United Kingdom and Argentina over the Falkland Islands, South Georgia and the South Sandwich Islands and surrounding maritime areas. The Falkland Islands constitute an Overseas Territory of the United Kingdom in the southern Atlantic Ocean, located over 400 km east of the South American continent. The Falkland Islands Government exercises control over its internal affairs but the United Kingdom remains responsible for their defense and foreign affairs. However, Argentina claims sovereignty over the islands it calls the Malvinas along with other British and Chilean islands in the region. The dispute led to an armed conflict in 1982 when Argentina invaded and occupied the islands before being defeated by the British. But Argentina continues to claim the islands are part of its national territory. The dispute remains unresolved despite United Nations resolutions calling on both countries to resume negotiations.
Law of Outer Space
There were a variety of theories prior to the First World War with regard to the status of the airspace above states and territorial waters. The 1919 Paris Convention for the Regulation of Aerial Navigation affirmed the full sovereignty of states over the air space above their land and territorial sea. This established that the international law rules protecting sovereignty of states apply to the airspace as they do to the land below. Therefore, aircraft may only traverse the airspace of states with the agreement of those states.
The usque ad coelum rule states that land ownership extends upwards indefinitely. However, states have agreed to apply the international law principles of res communis to outer space. This means that outer space is considered common property and free for all nations to use.
The legal regime of outer space was further clarified in 1967 with the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. This treaty established key principles such as the exploration of outer space being for the benefit of all countries and outer space being free for exploration and use by all states.
In 1979, the Agreement Governing the Activities of States on the Moon and other Celestial Bodies was adopted to elaborate on provisions of the 1967 treaty. This agreement establishes a framework of rules for activities on the moon and other celestial bodies.
Defining Outer Space
Outer space lacks clearly defined boundaries. Historically, the Latin principle of terrae dominium finitur ubi finitur armorum vis (“the domain of the land ends where the power of arms ends”) or the common law usque ad coelum (“up to the sky”) doctrine prevailed. This meant that a state’s sovereign territory extended indefinitely upward.
With the advent of airplanes and rockets, this doctrine became unworkable. A new approach was needed to govern the use of airspace and outer space. The international community agreed that outer space should be considered res communis (common property) free for exploration and use by all states.
A key development was the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (known as the Outer Space Treaty). This treaty established that outer space is free for exploration and use by all states, not subject to national appropriation, and to be used for peaceful purposes. The treaty did not define a boundary between airspace and outer space but effectively established outer space as beginning at the lowest possible flight altitude. Subsequent treaties built on the Outer Space Treaty to create a framework governing activities in outer space.
Outer Space Legal Regime
The legal regime governing outer space was established through two key international treaties - the 1967 Outer Space Treaty and the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Agreement).
The Outer Space Treaty forms the basis for international space law. It establishes outer space as a “global commons” not subject to national appropriation, bans weapons of mass destruction in space, and holds states responsible for national space activities whether carried out by governments or non-government entities. The treaty also requires states to avoid harmful contamination of space and celestial bodies.
The Moon Agreement elaborates on provisions of the Outer Space Treaty as applied to the moon and other celestial bodies. It establishes a regime for governing the exploitation of natural resources in space, including the establishment of an international regulatory body. However, the Moon Agreement has not been widely ratified.
Some key principles established in the outer space legal regime include:
- Outer space shall be free for exploration and use by all states
- Outer space is not subject to national appropriation or claims of sovereignty
- Activities in space shall be carried out for the benefit of all countries and shall promote international cooperation
- States are responsible for national space activities, whether carried out by governmental or non-governmental entities
- Weapons of mass destruction are banned from outer space
- States shall avoid harmful contamination of space and celestial bodies
- States shall consult and cooperate on space activities
The legal regime aims to promote peaceful and cooperative efforts in the exploration and use of outer space. However, issues around resource mining, space debris, and weaponization continue to pose challenges in applying and adapting the established principles to new realities.
Current Issues
Space technology and exploration have rapidly advanced in the 21st century, leading to new opportunities as well as challenges in the legal governance of outer space activities. Some key issues include:
Satellite Technology
- The number of satellites launched into orbit has massively increased, enabling worldwide communications and observation capabilities. However, the growing congestion of satellites and space debris poses risks of collision. There are calls for more regulation of satellite orbits and requirements to deorbit retired satellites.
Space Militarization
- Major countries are developing anti-satellite and other space-based weapons, raising concerns of a space arms race. The Outer Space Treaty only bans weapons of mass destruction, not conventional arms. A new international agreement may be needed to limit the militarization of space.
Space Debris
- Decades of space activity have littered Earth’s orbit with debris like broken satellites and rocket parts. This increases the likelihood of collisions and serious damage to operational spacecraft. There are technical guidelines on minimizing debris production, but no binding international rules. Improved tracking and removal of existing debris may be necessary.
Conclusion
This overview explored the concept of territory and its importance in international law. We discussed the central role of territorial integrity as a fundamental principle, protecting states from violations of their sovereignty. The relationship between territory and sovereignty was reviewed, including how states acquire territory and the legal implications.
Special considerations around boundary rivers and outer space were also covered. The definition and legal status of outer space has evolved through key treaties. While early on, states asserted sovereignty over airspace, eventually outer space was deemed to be free for exploration and use by all.
In summary, territory remains a crucial foundation of the international legal order. The inviolability of borders and state sovereignty over land, airspace and maritime zones are critical to peaceful relations. As technology progresses, applying existing legal principles to new frontiers like outer space continues to be an evolving challenge. But at its core, international law still firmly upholds territorial integrity while balancing shared interests.