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Brownlie's Principles of Public International Law, 8th Edition by Crawford, James R (27th September 2012) [OLD EDITION]

Part III Territorial Sovereignty, 8 Forms of Governmental Authority over Territory

From: Brownlie's Principles of Public International Law (8th Edition)

James R Crawford

A newer edition of Brownlie's Principles of Public International Law is available. Latest edition (9 ed.)
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From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 13 November 2019

Subject(s):
Sovereignty — Territory, title — Demarcation — State succession

(p. 203) Forms of Governmental Authority over Territory

1.  The Concept of Territory

In spatial terms the law knows four types of regime: territorial sovereignty, territory not subject to the sovereignty of any state or states and which possesses a status of its own (e.g. trust territories), res nullius, and res communis. Territorial sovereignty extends principally over land territory and the territorial sea, its seabed and subsoil. The concept of territory includes islands, islets, rocks, and (in certain circumstances) reefs.1 Exceptionally an area of territory may be under the sovereignty of several states (a condominium), though in practice these have always been states with other territory subject to their exclusive sovereignty.2 A res nullius consists of an area legally susceptible to acquisition by states but not as yet placed under territorial sovereignty. The res communis, consisting of the high seas (which for present purposes include exclusive economic zones) and also outer space, is not capable of being placed under sovereignty. In accordance with customary international law and the dictates of convenience, the airspace above and subsoil beneath state territory, the res nullius, and the res communis are included in each category.

(p. 204) 2.  Key Terms and Distinctions

(A)  Sovereignty and Jurisdiction

State territory and its appurtenances (airspace and territorial sea), together with the government and population within its boundaries, constitute the physical and social base for the state. The legal competence of states and the rules for their protection depend on and assume the existence of this stable, physically identified (and normally legally delimited) base.

The competence of states in respect of their territory is usually described in terms of sovereignty and jurisdiction, but the terminology is not employed very consistently even in legal sources. At the same time, some uniformity of usage may be noted. The normal complement of state rights, the typical case of legal competence, is described commonly as ‘sovereignty’: particular rights, or accumulations of rights quantitatively less than the norm are referred to as ‘jurisdiction’. In brief, ‘sovereignty’ is shorthand for legal personality of a certain kind, that of statehood; ‘jurisdiction’ refers to particular aspects of the substance, especially rights (or claims), liberties, and powers. Of particular significance is the criterion of consent. State A may have considerable forces stationed within the boundaries of state B. State A may also have exclusive use of a certain area of state B, and exclusive jurisdiction over its own forces. If, however, these rights exist with the consent of the host state then state A has no claim to sovereignty over any part of state B.3 In such case there has been a derogation from the sovereignty of state B, but state A does not gain sovereignty as a consequence. It would be otherwise if state A had been able to claim that exclusive use of an area hitherto part of state B belonged to state A as sovereign, as of right and independently of the consent of any state.

(B)  Sovereignty and Ownership

The analogy between sovereignty over territory and ownership of real property appears more useful than it really is. For the moment it is sufficient to establish certain distinctions. The legal competence of a state includes considerable liberties in respect of internal organization and the disposal of territory. This general power of government, administration, and disposition is imperium, a capacity recognized and delineated by international law. Imperium is distinct from dominium in the form of public ownership of property within the state;4 a fortiori in the form of private ownership recognized as such by the law.5

(p. 205) (C)  Sovereignty and Administration

It may happen that the process of government over an area, with the concomitant privileges and duties, falls into the hands of another state. Thus after the defeat of Nazi Germany in the Second World War the four major Allied Powers assumed supreme power in Germany.6 The German state did not, however, disappear. What occurred is akin to legal representation or agency of necessity. Indeed, the legal basis of the occupation depended on its continued existence. The very considerable derogation of sovereignty involved in the assumption of powers of government by foreign states, without the consent of Germany, did not constitute a transfer of sovereignty. A similar case, long recognized in customary law, is the belligerent occupation of enemy territory in time of war.7 The important features of ‘sovereignty’ in such cases are the continued existence of a legal personality and the attribution of territory to that legal person and not to holders of the territory for the time being.8

(D)  ‘Sovereign Rights’ beyond State Territory

A further source of confusion is the fact that sovereignty is not only used as a description of legal personality accompanied by independence but also as a reference to various types of rights, indefeasible except by special grant, in the patrimony of a state, for example the ‘sovereign rights’ a coastal state has over the resources of the continental shelf,9 or a prescriptive right of passage between the main territory and (p. 206) an enclave. Rights which are ‘owned’ and in this special sense ‘sovereign’ involve a broader concept, not reducible to territorial sovereignty.

3.  Territorial Administration Separated From State Sovereignty

While the concept of territorial sovereignty normally applies in relation to states, there is now considerable experience with international organizations not only administering territory in the capacity of agent but also assuming legal responsibility for territory in respect of which no state has title. Such a situation arose in 1966 when the General Assembly terminated the Mandate of South West Africa. The legal relations of an organization to the territory in such a case can only be classified as sui generis because terms and concepts like ‘sovereignty’ and ‘title’ are historically associated with the patrimony of states.10

(A)  Terminable and Reversionary Rights

Territorial sovereignty may be defeasible in certain circumstances by operation of law, for example by fulfilment of a condition subsequent or the failure of a condition under which sovereignty was transferred where there is an express or implied condition that title should revert to the grantor. The first situation is exemplified by the status of Monaco before 2005; its independence was conditional, in that if there was a vacancy in the Crown of Monaco it would have become a protectorate of France.11 Until such a condition operates the tenant had an interest equal in all respects to that of sovereignty.12

The second type of case was represented, on one view, by the system of mandates created after the First World War. The mandatories, or administering states for the various ex-German territories, were nominated by the five principal Allied and Associated Powers, in whose favour Germany had renounced sovereignty. On this basis, and because they took the decision to place the territories under mandate, it was suggested that ‘the Principal Powers retained a residual or reversionary interest in the actual territories concerned except where these have attained self-government or independence’.13 The precise incidents of such a reversion would depend on the circumstances of each (p. 207) case.14 But they did not amount to sovereignty; they took the form of a power of disposition, or of intervention or veto in any process of disposition.

(B)  Residual Sovereignty

Occupation of foreign territory in time of peace may occur on the basis of a treaty with the territorial sovereign. The grantee under the treaty may receive very considerable powers of administration, amounting to a delegation of the exercise of many of the powers of the territorial sovereign to the possessor for a particular period. Thus, in Article 3 of the Treaty of Peace of 8 September 1951, Japan agreed that, pending any action to place the Ryukyu Islands under the trusteeship system of the UN:

The United States will have the right to exercise all and any powers of administration, legislation and jurisdiction over the territory and inhabitants of these islands, including their territorial waters.15

US courts, in holding that inhabitants of the Ryukyus were not nationals of the US and that the islands were a ‘foreign country’ in connection with the application of various US statutes, referred to the ‘de facto sovereignty’ of the US and to the Japanese interest in terms of ‘residual sovereignty’ or ‘de iure sovereignty’.16 Restoration of full Japanese sovereignty was the subject of subsequent bilateral agreements.17

This type of interest may have practical consequences. In Lighthouses in Crete and Samos, the Permanent Court held that in 1913 Crete and Samos were under the sovereignty of Turkey, which therefore had the power to grant or renew concessions with regard to the islands. As regards Crete the Court said:

Notwithstanding its autonomy, Crete has not ceased to be a part of the Ottoman Empire. Even though the Sultan had been obliged to accept important restrictions on the exercise of his rights of sovereignty in Crete, that sovereignty had not ceased to belong to him, however it might be qualified from a juridical point of view.18

(C)  International Leases

There are examples of concessions of territory, including full governmental authority, for a period of years (the New Territories of Hong Kong prior to 1997)19 or even in (p. 208) perpetuity (Guantanamo Bay). In such cases the term ‘lease’ may be applied, but it is no more than a superficial guide to the interest concerned: each case depends on its particular facts and especially on the precise terms of the grant. Certainly there is a presumption that the grantor retains residual sovereignty. Certain types of ‘lease’ were however, virtual cessions of territory.20 The return of full control over several leased territories (Hong Kong in 1997, Macao in 1999, the Panama Canal Zone in 2000)21 may indicate a trend towards confirming the lessor’s sovereignty.

The best-known extant international lease is that between Cuba and the US with respect to Guantanamo Bay.22 The initial lease was concluded in 1903,23 shortly aft er Cuba was declared independent. A second lease was concluded in 1934.24 The revolutionary government in place since 1959 has consistently claimed both to be illegal.25 Although rarely articulated in legal terms, the basis for the Cuban claim is that the leases are voidable due to their inequitable character and the change in circumstances since the end of the Cold War.26 Material in this context is Article III of the 1903 Lease, which provides that:

While on the one hand the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand the Republic of Cuba consents that during the period of occupation by the United States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and control over and within said areas with a right to acquire…for the public purposes of the United States any land over or other property therein by purchase or by exercise of eminent domain with full compensation to the owners thereof.

(p. 209) The apparently perpetual character of the rights assigned by this clause has given rise to much commentary, a key issue being whether US constitutional rights protections extend to Guantanamo Bay.27

The difficulties concerning the nature of the grantor’s interest in this type of case, new examples of which are unlikely to arise, are not present in the amenity-providing ‘lease’ of a railway station or a military, naval, or air base.28 Here the rights conferred by a treaty, executive agreement or other intergovernmental agreement are of a more limited kind: consequently the grantor has a right to revoke the ‘contractual licence’ (according to its terms) and, after a reasonable time has elapsed, proportionate steps (even, in the last resort, force) may be employed to evict the trespasser.

(D)  Demilitarized and Neutralized Territory

Restrictions on use of territory, accepted by treaty, do not affect territorial sovereignty as a title, even when the restriction concerns matters of national security and preparation for defence.29 The same applies where demilitarized zones have been imposed by the Security Council30 or even (in the context of provisional measures) by the International Court.31

(E)  Vassalage, Suzerainty, and Protection

As noted, a condominium involves a sovereignty jointly exercised by two (or more) states on a basis of equality. Historically, other types of shared sovereignty have occurred in which the dominant partner, state A, has acquired a significant role in the government of state B, and particularly in the taking of executive decisions relating to the conduct of foreign affairs. The legal aspects of the relationship will vary with the circumstances of each case, and not too much can be deduced from the terminology of the relevant instruments.32 It may be that the protected community or ‘state’ is a (p. 210) part of state A and, as a colonial protectorate, has no international legal personality, although for purposes of internal law it may have a special status.33 The question of the status of colonial protectorates is complex and can only be approached on a case by case basis.34 The protected state may retain a measure of externally effective legal personality, although the exercise of its legal capacities be delegated to state A. In this latter case treaties by state A will not necessarily apply to state B. However, for certain purposes, including the law of neutrality and war, state B may be regarded as an agent of state A. Thus if state A declares war the protected state may be treated as belligerent also, although much will depend on the precise nature of the relations between states A and B.35 These questions, though they can still be important for the determination of the legal status of territory, pertain closely to the question of the independence of states, considered in chapter 5.

4.  Restrictions on disposition of Territory

(A)  Treaty Provisions

States may by treaty agree not to alienate certain parcels of territory in any circumstances, or they may agree not to transfer to a particular state or states.36 Moreover, a state may agree not to unite with another state: by the State Treaty of 1955, Austria is obliged not to enter into political or economic union with Germany.37 Previously, in Article 88 of the Treaty of St Germain of 1919, the obligation was expressed differently: the independence of Austria was ‘inalienable otherwise than with the consent of the Council of the League of Nations’.38 An obligation not to acquire territory may also be undertaken. In case of a breach of a treaty obligation not to alienate, or acquire, territory, the grantee may regard the treaty as res inter alios acta, and it is doubtful if the existence of a claim by a third state for breach of a treaty can result in the nullity of the transfer.

(p. 211) (B)  The Principle of Appurtenance

The territory of a state by legal implication includes a territorial sea and the airspace above its land territory and territorial sea.39 Thus if state A merges with state B, state B’s territory will include the territorial sea and the airspace formerly of state A.40 This simple idea is sometimes described as the principle of appurtenance,41 and high authority supports the view that as a corollary the territorial sea cannot be alienated without the coast itself (no doubt similarly in the case of airspace).42 But the logical and legal basis for the corollary is not compelling. Another form of appurtenance appears in the dissenting opinion of Judge McNair in the Anglo-Norwegian Fisheries case. In his words: ‘[i]nterna-tional law imposes upon a maritime State certain obligations and confers upon it certain rights arising out of the sovereignty which it exercises over its maritime territory. The possession of this territory is not optional, not dependent upon the will of the State, but compulsory’.43 Attractive though this view may seem at first sight, it raises many difficulties. How many of the various territorial extensions are possessed by compulsion of law? The desire to invest the coastal state with responsibility for the maintenance of order and navigational facilities is not a sufficient basis for McNair’s rule; indeed, this kind of logic would equally support a doctrine of closed seas. States are permitted to abandon territory, leaving it res nullius, whereas the presumptive consequence of disclaiming the territorial sea is simply to extend a res communis, the high seas.

5.  Conclusions

(A)  The Concept of Title44

The content of sovereignty has been examined from various points of view. By and large the term denotes the legal competence which a state enjoys in respect of its territory. (p. 212) This competence is a consequence of title and by no means conterminous with it. Thus an important aspect of state competence, the power of disposition, may be limited by treaty, but the restriction, provided it is not total, leaves title unaffected. However, the materials of international law employ the term sovereignty to describe both the concept of title and the legal competence which flows from it. In the former sense the term ‘sovereignty’ explains (a) why the competence exists and what its fullest possible extent may be; and (b) whether claims may be enforced in respect of interference with the territorial aspects of that competence against a particular state.

The second aspect mentioned is the essence of title: the validity of claims to territorial sovereignty against other states. The equivalent concept in French, titre, has been defined as follows: ‘[t]erme qui, pris dans le sens de titre juridique, désigne tout fait, acte ou situation qui est la cause et le fondement d’un droit’.45 In principle the concept of ownership, opposable to all other states and unititular,46 does exist. Thus the first and undisputed occupation of land which is res nullius may give rise to title which is equivalent to the dominium of Roman law. However, in practice the concept of title employed to solve disputes approximates to the notion of the better right to possess familiar in the common law.47 The operation of the doctrines of acquiescence and recognition makes this type of approach inevitable, but in any case tribunals will favour an approach which reckons with the limitations inherent in a procedure dominated by the presentation of evidence by two claimants, the result of which is not automatically opposable to third states.48

(B)  Title, Delimitation, Demarcation

In a broad sense many questions of title arise in the context of ‘boundary disputes’, but as a matter of principle the determination of the location in detail of the boundary line is distinct from the issue of title. Considerable dispositions of territory may take place in which the grantee enjoys the benefit of a title derived from the grant although no determination of the precise boundary line is made.49 On the other hand precise determination of the boundary may be made a suspensive condition in a treaty of (p. 213) cession. The process of determination is carried out in accordance with a special body of rules. For example according to the thalweg principle in the case of a navigable river, the middle of the principal channel of navigation is accepted as the boundary. In the case of non-navigable watercourses the boundary is constituted by the median line between the two banks.50

The practical aspects of boundaries must be emphasized. Agreement as to the precise details of a boundary is often followed by the separate procedure of demarcation, that is, the marking, literally, of the boundary on the ground by means of posts, stone pillars, and the like. A boundary may be legally definitive and yet remain undemarcated. Boundaries which are de facto, either because of the absence of demarcation or because of the presence of an unsettled territorial dispute, may nevertheless be accepted as the legal limit of sovereignty for some purposes, for example those of civil or criminal jurisdiction, nationality law, and the prohibition of unpermitted intrusion with or without the use of arms.

(C)  Nemo Dat Quod Non Habet51

This maxim, together with some exceptions, is a familiar feature of English law, but the principle is undoubtedly part of international law also. In Island of Palmas, Arbitrator Huber stated:

The title alleged by the United States of America as constituting the immediate foundation of its claim is that of cession, brought about by the Treaty of Paris, which cession transferred all rights of sovereignty which Spain may have possessed in the region.…It is evident that Spain could not transfer more rights than she herself possessed.52

The effect of the principle is much reduced by the operation of acquiescence and recognition.

Certain connected principles require consideration. First, in principle the adjudication by a tribunal of a piece of territory as between states A and B is not opposable to state C. The tribunal, insofar as adjudication of itself gives title, only has jurisdiction to decide as between the parties before it.53 The fact that state C claims a particular parcel of territory does not deprive the tribunal of power to adjudicate and does not prevent states A and B from defining their rights in relation to the parcel mutually.54 In (p. 214) certain cases, the principle operates through particular rules governing special problems. Thus an aggressor, having seized territory by force may purport to transfer the territory to a third state. The validity of the cession will depend on the effect of specific rules relating to the use of force by states. Again, a state may transfer territory which it lacks the capacity to transfer. In this type of situation much turns on the extent to which defects of title may be cured by acquiescence, and recognition.

Under certain conditions it is possible that the law accepts the existence of encumbrances passing with territory ceded. McNair refers to ‘treaties creating purely local obligations’ and gives as examples territory over which the ceding state has granted to another state a right of transit55 or a right of navigation on a river,56 or a right of fishery in territorial or internal waters.57 This is also the approach of the 1978 Vienna Convention on the Succession of States in Respect of Treaties, Article 12 of which provides that a succession of states shall not affect obligations or rights ‘relating to the use of territory’ which are ‘established by a treaty for the benefit of any territory of a foreign state and considered as attaching to the territories in question’.58

Footnotes:

1  For the dispute over the large Caribbean reef structure Quitasueño Bank: Pratt (2001) IBRU Boundary and Security Bulletin 108. Generally: Argentina/Chile (Beagle Channel) (1977) 21 RIAA 53, 189; Eritrea v Yemen(Territorial Sovereignty) (1998) 114 ILR 1, 138–9; Maritime Delimitation and Territorial Questions between Qatar and Bahrain, ICJ Reports 2001 p 40, 200, and on the distinction between low- and high-tide elevations: chapter 11.

2  Generally: Bantz (1998) 12 Florida JIL 77; Barberis, in Kohen (ed), Liber Amicorum Lucius Caflisch (2007) 673; Samuels (2008) 29 Mich JIL 732. The best-known example is the former condominium of the New Hebrides (now Vanuatu): O’Connell (1968–69) 43 BY 71. The legal regime may be used to deal with problems of neighbourhood relating to boundary rivers and the like: Dutch-Prussian Condominium (1816) 6 ILR 50; also: Brown, The Saudi Arabia Kuwait Neutral Zone (1963). For the Anglo-Egyptian Sudan: Taha (2005) 76 BY 337. In certain cases, e.g. land-locked lakes and bays bounded by two or more states, it has been argued that riparian states have a condominium by the operation of law. This is doubtful, but it is possible for such a regime to arise by usage. In relation to the Gulf of Fonseca the Chamber held that its waters, other than the three-mile maritime belts, ‘are historic waters and subject to a joint sovereignty of the three coastal states’: Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), ICJ Reports 1992 p 351, 601. Also Gulf of Fonseca (1917) 11 AJIL 674. In each case the particular regime will depend on the facts, and it is unsafe to rely on any general theory of community of property.

3  E.g. British Sovereign Base Areas in Cyprus. Further: Hendry & Dickson, British Overseas Territories Law (2011) 339–42.

4  Or elsewhere: cf the John F Kennedy Memorial Act 1964, s1 which transferred to and vested in the US land at Runnymede, England for an estate in fee simple absolute to be held in perpetuity.

5  Cf Lauterpacht, 1 International Law(1970) 367, 367–70. Generally: Shan et al (eds), Redefining Sovereignty in International Economic Law (2008).

6  It is assumed that the form which the occupation took was lawful. See Jennings (1946) 23 BY 112, and on post-1945 Germany, Crawford, Creation of States (2nd edn, 2006) 452–66, 523–6; chapter 5.

7  L v N (1947) 14 ILR 242. The basic rule in the modern law of military occupation that the occupation of territory during war does not confer sovereignty upon the occupying power is borne out, inter alia, in Arts 43, 45 of the Hague Regulations 1907 which establish the occupying force as a mere de facto administrator: Pictet (ed), Commentary on Geneva Convention IV of 1949 (1958) 273. Further: Fleck (ed), The Handbook of International Humanitarian Law (2nd edn, 2008) 273–84. Cf McCarthy (2005) 10 JCSL 43, questioning the right of the Coalition forces to implement structural changes in the government of Iraq during its occupation 2003–04. Another instance is provided by the situation in which the ceding state still administers the ceded territory, by agreement with the state taking cession: Gudder Singh v The State (India) (1953) 20 ILR 145. Further examples of delegated powers: Quaglia v Caiselli (1952) 19 ILR 144; Nicolo v Creni (1952) 19 ILR 145. On belligerent occupation generally: Benvenisti, The International Law of Occupation (1993); Dinstein, The Law of Belligerent Occupation (2009). On the issue of Northern Cyprus, see e.g. Loizidou v Turkey (1996) 108 ILR 443, 462: Cyprus, which does not exercise effective control over Northern Cyprus, ‘has remained the sole legitimate Government of Cyprus’; also Tomko v Republic of Cyprus, ILDC 834 (CY 2007). Further, the lack of effective control over part of a state’s territory does not diminish that state’s rights over that territory under international law. E.g. the Republic of Cyprus, whilst not having effective control over the occupied northern part of the island, is still entitled to exercise its sovereign rights over the latter’s airspace under the Chicago Convention on Civil Aviation: KTHY v Secretary of Transport [2009] EWHC 1918 (Admin) §52; [2010] EWCA Civ 1093, §§38, 68–9; also Franklin (2011) 36 Air & Space L 109; Franklin & Porter (2010) 35 Air & Space L 63.

8  On recent international administrations: e.g. Knoll, The Legal Status of Territories Subject to Administration by International Organisations (2008); Stahn, The Law and Practice of International Territorial Administration (2008); Wilde, International Territorial Administration (2008).

9  E.g. GCCS, 28 April 1958, 499 UNTS 311, Art 2, recognized as customary law in North Sea Continental Shelf (Federal Republic of Germany/Netherlands; Federal Republic of Germany/Denmark), ICJ Reports 1969 p 3, 19, reiterated in UNCLOS, 10 December 1982, 1833 UNTS 3, Art 77.

10  International Status of South West Africa, ICJ Reports 1950 p 128, 150 (Lord McNair). Also Perritt (2003) 8 UCLA JILFA 385.

11  Treaty of Friendship, 17 July 1918, 981 UNTS 364, Art 3.

12  Now Treaty of 24 October 2002, 48 AFDI 792, 48; Crawford (2nd edn, 2006) 328.

13  South West Africa (Ethiopia v South Africa; Liberia v South Africa), Preliminary Objections, ICJ Reports 1962 p 319, 482 (Judges Spender & Fitzmaurice, diss).

14  Eritrea v Yemen(Territorial Sovereignty) (1998) 114 ILR 1, 40, 115, where the Tribunal held that Yemen had not shown that the doctrine of reversion exists in international law.

15  136 UNTS 45.

16  E.g. Burna v US, 240 F.2d 720 (1957). Also: Oda & Owada (eds), The Practice of Japan in International Law 1961–1970 (1982) 76–96.

17  (1968) 7 ILM 554; Rousseau (1970) 74 RGDIP 682, 717; Rousseau (1970) 64 AJIL 647.

18  Lighthouses in Crete and Samos (1937) PCIJ Ser A/B No 71, 126–30. Also: 1 Lauterpacht (1970) 367, 372–3.

19  Treaty between China and Great Britain, 29 August 1842, 30 BFSP 389. On the expiry of the lease: UKMIL (1985) 56 BY 363, 483–5; UKMIL (1986) 57 BY 487, 513–14, 529–34. Further: Malanczuk, ‘Hong Kong’ (2010) MPEPIL.

20  Secretary of State for India v Sardar Rustam Khan (1941) 10 ILR 98. Also: Union of India v Sukumar Sengupta (1990) 92 ILR 554, for discussion on the difference between a lease and servitude.

21  Panama-US Convention of 18 November 1903, USTS No 431. In In re Cia de Transportes de Gelabert (1939) 9 ILR 118, the Panama Supreme Court held that Panama retained ‘its jurisdictional rights of sovereignty’ in the airspace of the Canal Zone. Cf Stafford Allen & Sons, Ltd v Pacific Steam Navigation Co [1956] 2 All ER 716. The Panama Canal Treaty and the Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal, 7 September 1977, 1161 UNTS 177, 1280 UNTS 3, superseded the 1903 Convention: Arcari, ‘Panama Canal’ (2009) MPEPIL.

22  Lazar (1968) 62 AJIL 730; Lazar (1969) 63 AJIL 116; Johns (2005) 16 EJIL 613; Strauss (2006–07) 10 NYCLR 479. Another example is the British Indian Ocean Territory (BIOT). In 1966, the UK made the BIOT available to the US for a period of at least 50 years; it subsequently agreed to the establishment of a military base on Diego Garcia Island and to allow the US to occupy the other islands of the Archipelago if they should wish to do so. Cf Bancoult v Foreign Secretary [2008] UKHL 61. On the alleged violations of the indigenous people’s rights in BIOT: Bancoult v McNamara, 445 F.3d 427 (DC Cir, 2006); 549 US 1166 (2007); and the cases pending before the ECtHR, Chagos Islanders v UK, Application 35622/04, and an UNCLOS Annex VII Tribunal (Mauritius v UK): see ITLOS/Press 164, 25 March 2011.

23  Agreement between Cuba and the United States for the Lease of Lands for Coaling and Naval Stations, 16 and 23 February 1903, 192 CTS 429.

24  Treaty Concerning the Relations between the United States of America and the Republic of Cuba, 29 May 1934, 150 LNTS 97.

25  Further: de Zayas, ‘Guantánamo Naval Base’ (2009) MPEPIL.

26  Ronen, ‘Territory, Lease’ (2008) MPEPIL. Further: Gabčíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997 p 7, 64–5.

27  Particularly in relation to the US use of its naval facility at Guantanamo to house detainees captured as part of the so-called ‘war on terror’: e.g. Steyn (2004) 53 ICLQ 1 (describing the facility as a ‘legal black hole’); Abbasi v Foreign Secretary [2002] EWCA Civ 1598 (Eng) §64. Also: de Zayas (2003–04) 37 UBCLR 277; Neuman (2004) 50 Loyola LR 1; Johns (2005) 16 EJIL 613. Key US decisions are Rasul v Bush, 542 US 466 (2004); Hamdan v Rumsfeld, 548 US 557 (2006); Boumediene v Bush, 553 US 723 (2008); Al Maqaleh v Gates, 605 F.3d 84 (DC Cir, 2010). Also: Khadr v Canada (No 1) (2008) 143 ILR 212; Khadr v Canada (No 2) (2009) 143 ILR 225.

28  Another example of a modern lease agreement is the US Manas Airbase in Kyrgyzstan, renewed in 2010: US–Kyrgyzstan Status of Forces Agreement, 4 December 2001.

29  A-G of Israel v El-Turani (1951) 18 ILR 164.

30  E.g. SC Res 687 (1991) re-confirming the territorial sovereignty of both Iraq and Kuwait while imposing a demilitarized zone in the border region between the states; SC Res 1973 (2011) re-confirming the territorial sovereignty of Libya while imposing a no-fly zone.

31  Request for Interpretation of the Judgment of 15 June 1962 in the case concerning the Temple of Preah Vihear (Cambodia v Thailand), Order of 18 July 2011, §§39–42, 61.

32  Verzijl, 2 International Law in Historical Perspective (1969) 339–454; Rousseau, 2 Droit International Public(1974) 276–300. On the unique co-seigneury of Andorra before the adoption of its constitution in 1993 see Cruzel v Massip (1960) 39 ILR 412; Re Boedecker & Ronski (1965) 44 ILR 176; Crawford (1977) 55 RDISDP 258. Now: Duursma, Fragmentation and the International Relations of Micro-States (1996) 316–73.

33  Ex parte Mwenya [1960] 1 QB 241 (sovereignty of the British Crown over the protectorate of Northern Rhodesia indistinguishable in legal effect from that of a British colony; habeas corpus thus available). Mwenya was cited by the US Supreme Court in Rasul v Bush, 542 US 466, 482 (2004).

34  Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria), ICJ Reports 2002 p 303, 402–7 (kings and chiefs of Old Calabar).

35  Cf Nationality Decrees Issued in Tunis and Morocco (1923) PCIJ Ser B No 4, 27.

36  Rousseau, 3 Droit International Public (1977) 197–8; Verzijl (1969) 477–8.

37  15 May 1955, 217 UNTS 223, Art 4.

38  (1920) 14 AJIL Supp 30. See Customs Regime between Germany and Austria (1931) PCIJ Ser A/B No 41.

39  E.g. when Great Britain acquired sovereignty over Australia’s Northern Territory in 1824 it also acquired sovereignty over the territorial sea ‘by operation of international law’: Yarmirr v Northern Territory (2001) 125 ILR 320, 350. Cf Art 1 of the Convention on International Civil Aviation, 7 December 1944, 15 UNTS 295, reflecting customary law: ‘[t]he contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory’; KTHY v Secretary of Transport [2009] EWHC 1918 (Admin), §41; [2010] EWCA Civ 1093, §26.

40  Claims to territory and treaties of transfer usually refer to territory as specified, or islands, without referring to territorial waters: e.g. the Italian Peace Treaty, 10 February 1947, 49 UNTS 3, Arts 11, 14; Treaty between US and Cuba relating to the Isle of Pines, 2 March 1904, 127 LNTS 143: Wright (1925) 19 AJIL 340.

41  Grisbadarna (Norway v Sweden) (1909) 11 RIAA 147, 155. Cf Procurator General v D (1948) 15 ILR 70 (status of the maritime belt determined by that of the adjoining land); on the power of the mandatory to legislate for the territorial waters of the mandated territory, Naim Molvan v A-G for Palestine [1948] AC 351.

42  1 Oppenheim 479–84; also Towey (1983) 32 ICLQ 1013.

43  Fisheries (UK v Norway), ICJ Reports 1951 p 116, 160 (Judge McNair, diss). Also: Fitzmaurice (1954) 31 BY 371, 372–3; Fitzmaurice (1957) 92 Hague Recueil 1, 129, 137–8.

44  The following works are helpful, since the problems in the sphere of international law are basically the same: Honoré, in Guest (ed), Oxford Essays in Jurisprudence (1961) 107, 134–41; Buckland & McNair, Roman Law and Common Law (2nd edn, 1965) 71–88 (excursus by Lawson). Also: Castellino & Allen, Title to Territory in International Law (2003).

45  Basdevant, Dictionnairedelaterminologiedudroitinternational (1960) sv. Cf Salmon (ed), Dictionnaire de droit international public (2001) 1084.

46  Honoré, in Guest (1961) 137, for a definition of a unititular system: ‘[u]nder it, if the title to a thing is in A, no title to it can be acquired (independently) by B, except by a process which divests A. There is only one “root of title” for each thing, and the present title can ultimately be traced back to that root.’

47  Jennings, Acquisition of Territory in International Law (1963) 5–6. The common law is ‘multititular’: Honoré, in Guest (1961) 139; so is international law: Legal Status of Eastern Greenland (1933) PCIJ Ser A/B No 53, 46; Island of Palmas (Netherlands v US) (1928) 2 RIAA 829, 840.

48  Statute of the International Court of Justice, 26 June 1945, 33 UNTS 993, Art 59.

49  On the effect of treaties of cession or renunciation relating to territories the boundaries of which are undetermined: Interpretation of Article 3, Paragraph 2, of the Treaty of Lausanne (1925) PCIJ Ser B No 12, 21.

50  Kasikili/Sedudu Island (Botswana v Namibia), ICJ Reports 1999 p 1045, 1061–2; Frontier Dispute (Benin v Niger), ICJ Reports 2005 p 90, 149–50. Also: Guyana/Suriname Arbitration (2007) 139 ILR 566, §§137, 194, 226, 301. Generally: Cukwurah, The Settlement of Boundary Disputes in International Law (1967); 3 Rousseau (1977) 231–72; Brownlie, African Boundaries (1979); Shaw, Title to Territory in Africa (1986) 221–63; Biger (1989) 25 MES 249; McCaffrey, The Law of International Watercourses (2nd edn, 2007) 70–2; Islam, The Law of Non-Navigational Uses of International Watercourses (2010).

51  Cameroon v Nigeria, ICJ Reports 2002 p 303, 400–7. Also McNair, Treaties (1961) 656, 665.

52  Island of Palmas (Netherlands v US) (1928) 2 RIAA 829, 842.

53  Guiana Boundary (Brazil v UK) (1904) 11 RIAA 11, 22.

54  Boundary Agreement between China and Pakistan, 2 March 1963, (1963) 57 AJIL 713, which is expressed as fixing ‘the alignment of the boundary between China’s Sinkiang and the contiguous areas the defence of which is under the actual control of Pakistan’. Thus India’s rights in respect of Kashmir are not foreclosed (Art 6 of the Agreement).

55  ‘A right of transit by one country across the territory of another can only arise as a matter of specific agreement’: Iron Rhine (Belgium v Netherlands) (2005) 27 RIAA 35, 64.

56  E.g. the rights of Costa Rica over the San Juan River: Navigational and Related Rights (Nicaragua v Costa Rica), ICJ Reports 2009 p 213.

57  McNair (1961) 656. Others speak of ‘international servitudes’, a term McNair rejects since it ‘would make the category depend upon the recognition by international law of the institution known as a servitude, which is highly controversial’. See however Eritrea v Yemen (Territorial Sovereignty) where the Tribunal noted that the traditional open fishing regime in the southern Red Sea together with the common use of the islands in the area by populations of both coasts was capable of creating historic rights accruing to the two states in dispute in the form of ‘a “servitude internationale” falling short of territorial sovereignty’: (1998) 114 ILR 1, 40–1. Evidently the Tribunal could not quite stomach the idea of a servitude in English. In the region this well-meaning dictum has been a further source of conflict. On the question of servitudes see also Right of Passage over Indian Territory (Portugal v India), ICJ Reports 1960 p 6; Aaland Islands (1920) LNOJ Sp Supp No 3, 18; SS Wimbledon (1920) PCIJ Ser A No 1, 24. Traditionally, such rights were to be interpreted restrictively as limitations to sovereignty. However, such a restrictive interpretation has been rejected in more recent cases: e.g. Iron Rhine (2005) 27 RIAA 35, 64–7; Navigational Rights, ICJ Reports 2009 p 213, 237–8.

58  23 August 1978, 1946 UNTS 3. Art 12 does not however say when rights and duties are so considered.