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territorial sea of another state; prescriptive right of passage between territorial homeland
and enclave). Exercise of “owned” rights (sovereign) is not to be confused with TS.
1. Concept of Territory.
4 types of regimes in law: 6. Administration Divorced from State Sovereignty.
i. Territorial sovereignty (TS) – principally over land territory, territorial sea appurtenant to the International organizations not only administer territory as legal representatives but may
land, seabed and subsoil of the territorial sea. Territory includes islands, islets, rocks and also assume legal responsibility for territory in respect of which no state has TS (in 1966,
reefs. UN GA terminated Mandate of South West Africa). Difficulty: historical association of
ii. Territory not subject to sovereignty of any state/s – possesses status of its own. concepts of ‘sovereignty’ and ‘title’ with the patrimony of states with definable sovereigns.
iii. Res nullius – same subject matter legally susceptible to acquisition by states but not as
yet placed under territorial sovereignty. 7. Territory the Sovereignty of which is Indeterminate.
iv. Res communis – the high seas, including exclusive economic zones and the outer space, Such that, a piece of territory not a res nullius has no determinate sovereign. This isn’t the
which is not capable of being placed under state sovereignty. case where 2 states have conflicting legal claims to territory since a settlement of the
Per customary int’l law and dictates of convenience: airspace above an subsoil beneath dispute has retroactive affect (winner deemed sovereign during the period of contention—
state territory, the res nullius, and the res communis are included in each category. territory was the subject-matter of the claim, not the sovereignty).
Sovereignty may also be indeterminate in so far as the process of secession may not be
2. Sovereignty and Jurisdiction. seen to be complete at any precise point in time.
Physical and social manifestations of primary type of int’l legal person, the state: Existing cases usually from renunciation of sovereignty by former holder and coming into
i. Territory and appurtenances (airspace, sea); being of an interregnum with disposition postponed until a certain condition is fulfilled or the
ii. Government; states having power of disposition for various reasons omit to exercise a power or fail to
iii. Population within its frontiers exercise it validly (Japan renounced its rights to Formosa via a peace treaty but there was
Competence of states WRT territory usually described in terms of: no transferee-British Gov’t acknowledged it of indeterminate sovereignty; British Gov’t
i. Sovereignty – legal personality of a certain kind; normal complement of state recognized Taiwan as a province of China).
rights, the typical case of legal competence.
8. Terminable and Reversionary Rights.
ii. Jurisdiction – particular aspects of the substance, especially rights (or claims), TS may be defeasible in some circumstances by operation of law [Ex. Fulfilment of
liberties and powers (like immunities). condition subsequent (Monaco: independent until there is no vacancy in the Crown) or
Criterion of consent is significant: State A has much forces in and has exclusive use of much failure of condition under which sovereignty was transferred where there is an express or
area in State B, but if B consents to this, the derogation from sovereignty does not amount implied condition that title reverts to grantor (mandatories of ex-German territories
to acquisition of sovereignty by A. nominated by Allied powers-they retain on a dormant basis a residual or reversionary
interest in the territories except when they have attained independence).
3. Sovereignty and Ownership. Reversionary interests depend on facts of the case; takes the form of a power of disposition
Legal competence of a state includes considerable liberties in respect of internal or of intervention or veto in any process of disposition.
organization and disposal of territory. Reversion – change of sovereignty
Imperium – general power of government, administration and disposition; capacity ‘Residual sovereignty’ – TS has not lost status as such.
recognized and delineated by int’l law.
Dominium – either in the form of public ownership of property within the state or of private 9. Residual Sovereignty.
ownership recognized as such by the law. Occupation of foreign territory in peacetime may occur on the basis of a treaty with the
territorial sovereign. Grantee may get considerable powers of administration amounting to a
4. Administration and Sovereignty. delegation of the exercise of powers of the TS to the possessor for a particular period (Art.
Process of government over an area, with concomitant privileges and duties, may fall into 3, Treaty of Peace of 1951—US given right to exercise powers of administration, legislation
the hands of another state (Allies’ assumption of supreme powers over Germany after and jurisdiction over the territory, including territorial waters, and inhabitants of the Ryukyu
WWII, but latter’s legal competence continued to exist). This is akin to legal representation Islands. US said that Japan retained ‘residual (de jure) sovereignty’ while US had de facto
or agency of necessity—no transfer of sovereignty (belligerent occupation of enemy territory sovereignty. Restoration of full Japanese sovereignty was the subject of bilateral
in wartime). Important features of sovereignty are the continued existence of a legal agreements, 1968, 69, 70.
personality and attribution of territory to that legal person, not to the current holders. Oppenheim calls this ‘nominal sovereignty’, has practical consequences: continuation of
right of disposition (Lighthouses in Crete and Samos, 1939: Turkey had sovereignty over
5. Sovereignty and Responsibility. The Ownership of Rights. Crete and Samos in 1913, had power to grant or renew concessions WRT the islands.
Confusion: sovereignty is also used as a reference to various types of rights, indefeasible Thus, Turkey was later able to cede to islands to Greece).
except by special grant, in the patrimony of a sovereign state (‘sovereign rights’ of coastal
states over resources of the continental shelf; prescriptive, historic right to fish in an area of 10. International Leases.
Each case depends on facts and terms of the grant. Presumption: grantor retains residual This problem concerns a status in rem; the fact that one state cannot alienate territory
sovereignty (Convention of 1898, China provisionally ceded to Germany for 99 years both without consent of one or the others does not justify application of the general category of
sides of the entrance to the Bay of Kiao-Chau. Art. 3 says China will abstain from exercise joint tenancy, as opposed to tenancy in common.
of rights of sovereignty in the territory during the term of lease—it retains residual
sovereignty and grantee has no right to dispose the territory to a third state). 15. Vasalage, Suzertainty and Protection.
Difficulties over the nature of grantor’s interest are present in amenity providing ‘lease’ of Other types of shared sovereignty have occurred:
railway station or military, naval or air base. Rights conferred by treaty, executive agreement Dominant partner, state A, has acquired a significant role in government of state B,
or intergovernmental agreement are of more limited nature: grantor has right to revoke the especially in making executive decisions relating to conduct of foreign affairs. Legal aspects
‘contractual license’ and after reasonable time, force may be used to evict the trespasser. vary with the facts.
Protected community or ‘state’ is part of state A and as a colonial protectorate, has no int’l
11. Use and Possession Granted in Perpetuity. legal personality, although in internal law, it will have special status. But the protected state
Residual sovereignty remaining with grantor: via Convention of 1903, Panama granted to may retain a measure of externally effective legal personality, although exercise of its legal
the US ‘in perpetuity the use, occupation and control of a zone of land and land under water capacities be delegated to state A. Treaties by state A will not necessarily apply to B. but, for
for the construction…and protection’ of the 10-mile wide Panama Canal. certain purposes, including the law of neutrality and war, B may be regarded as an agent of
But grantor might be seen to have renounced even the right of disposition, along with rights A.
of jurisdiction. A license can be terminated but not a grant in perpetuity. However, grantee’s
rights rests on agreement and would be defeated by a disposition of the residual 16. Mandates and Trust Territories.
sovereignty to a third state in regard to which grant was re inter alios acta. The restriction on The nature of state authority is not describable in terms of sovereignty and legal restraints
disposition consists in an inability to grant similar rights to another state: RS remains on exercise of power in such territories do not in general protect the ordinary legal interests
transferable and grantee has no power of disposition. of other states. This has close relations with the problem of representation in int’l law.