Introduction

Sovereignty in regard to a territory is known as territorial sovereignty. Territorial Sovereignty is

the right of a State to exercise over its own territory, to the exclusion of any other States, the
functions of a State. 1 It has a positive and a negative aspect. The first aspect relates to the
exclusivity of the right of the State with regard to its own territory, while the second aspect refers
to the obligation to protect the rights of other States.

A State exercises its territorial sovereignty within its boundary. Boundary is an imaginary
line that delineates the territorial limit of a State. Boundaries are of three dimensions.They
include the State land and the maritime domain of its internal waters and territorial sea, the
airspace and its subsoil. They are either natural topographical, having physical distinguishable
features such as mountains, rivers or lakes, or imaginary and artificial such as lines of attitude
and longitude, surveyor lines or posts. Both types have equal legal effects and usually based
upon treaties or historical title

Article 2.4 of the United Nations Charter requires members to ‘refrain in their international
relations from the threat or use of force against the territorial integrity or political independence
of any State’. Hence, we can see how the need for a territory is of prime importance for a State to
exist. A wandering tribe may have a government but it cannot count as a state unless it has a
territory that it has exclusive rights over.

The above discussion gives the impression that there could be only one full sovereign state and it
is not possible for two or more sovereign states to exist on the same territory. However this is not
completely true and some exceptions have been created to this rule over the years. We shall
discuss a few examples of such divided sovereignty.

Condominium – it is a political territory in or over which two or more sovereign powers formally
agree to share equally dominium (in the sense of sovereignty) and exercise their rights jointly,
without dividing it up into ‘national’ zones. Sudan for example was under the condominium of
Great Britain and Egypt from 1898 to 1955. The Anglo – Egyptian agreement on Sudan was

1
Shaw, pp. 411-12.

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signed on 19th January 1899, by Lord Cromer, the British counsel-general in Egypt, and Boutros
Ghali Pasha, the Egyptian minister of foreign affairs. Since Egypt itself was occupied by the
British, the agreement legalized British control of the Sudan and framed it as an Anglo –
Egyptian rule and administration. This condominium ended when the Sudanese Parliament voted
a Declaration establishing the Sudan as a fully sovereign republic in 1955 which was formally
agreed to by Egypt and UK on 31st December.

In some cases one state exercises sovereignty which is, in law, vested elsewhere: as where
territory is administered by a foreign power, with the consent of the owner state. An example of
this is when the Turkish island of Cyprus was under British administration from 1878 to 1914.
Basically, in these instances there is a cession of territories for all practical purposes however
under law the territory still belongs to the former owner-state.

Another exception is when the territory is leased or pledged by the owner-state to another foreign
power. A state may lease part of its territory to another state on certain terms and conditions of
lease or pledge it to another foreign power for a loan. The most famous example of this is the
“Chinese leases”. Hong Kong was leased to Great Britain by China for a period of about 99
years.

The fourth case is when the use, occupation and control of territory are granted by the owner-
state to another state perpetually, to the exclusion of exercise of any sovereign rights over that
territory by the grantor. Literally speaking even federal states can be brought under this
exception. In federal states different territories of single member states are collectively also the
territory of the federal state and sovereignty is divided between a federal state and its member
states. Lastly there is the case of mandated and trusteeship territory. Here also the trustee state
exercises most of the attributes of sovereignty over states that are not its own.

Now we shall briefly discuss the different parts of State Territory. If a state has a sea coast,
certain waters which are within or adjacent to its land boundaries also become state territory.
These include internal or national waters and territorial sea. National waters consist of lakes,
canals, rivers and their mouths etc-. Internal waters are legally equivalent to a state’s land, and
are entirely subject to its territorial sovereignty. Territorial sea on the other hand is the

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continuous belt of sea waters, adjacent to the coast of a state and thus includes waters of the
bays, gulfs and straits. The seabed and subsoil of the territorial sea along with the airspace above
it also fall within the sovereignty of the coastal state. There are maritime areas where coastal
states enjoy limited rights of jurisdiction. In fishing zones for example these states enjoy only
certain prior rights to jurisdiction and control, however they have exclusive and sovereign rights
in an ‘exclusive economic zone’. Another interesting aspect of state territory is outer space. The
first principle was that a state’s sovereignty extends over its airspace usque ad coelum. This was
until 1957 when Sputnik was launched. Soon a new principle of law emerged. It was generally
accepted that outer space and celestial bodies are not subject to appropriation by states and are to
be used for peaceful purposes.

Boundaries of state territory are the imaginary lines on the surface of the earth which separate the
territory of one state from another, or from unappropriated property or from the open sea.
Practically speaking the usual practice with regard to land boundaries is, to describe the
boundary line i.e. to ‘delimit’ it; and then to appoint boundary commissions to apply the
delimitation to the ground and if necessary mark it with posts or the like, as in to ‘demarcate’ it.
Article 11 of the Convention on Succession of States says that a succession of states doesn’t
affect a boundary established by a treaty, or obligations and rights established by a treaty and
relating to the regime of a boundary. The law clearly states that a boundary established by a
treaty is not to be called into question merely by fact of succession of states or the change in
circumstances since the treaty was made, however it is not correct to say that boundaries
established by treaty cannot be questioned at all.

State boundary forms a very important part of a nation and disputes relating to boundaries are
very common. The correct interpretation of the instruments by which that boundary was
established is looked into to decide the location of a land boundary under dispute. In other cases
arbitral awards or judicial decisions may be used to decide in cases, especially where the
meaning of a boundary treaty is being questioned. It is to be kept in mind that one of the primary
objects of the tribunals while solving such disputes of boundary settlements is ‘to achieve
stability and finality’.

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Here it is necessary to examine the doctrine of uti possidetis juris, which is a principle
of international law which provides that newly formed sovereign states should have the same
borders that their preceding dependent area had before their independence. It is often applied to
prevent foreign intervention by eliminating any contested terra nullius, or no man’s land, that
foreign powers could claim.Terra nullius is a Latin expression used in international law to
describe territory which has never been subject to the sovereignty of any state, or over which any
prior sovereign has expressly or implicitly relinquished sovereignty. This doctrine of uti
possedetis juris was adopted by the Spanish-American states after they had gained independence.
It intended to solve or avoid any sort of boundary problems between countries. However, in
practice owing to the uncertainty of many Spanish colonial administrative boundaries at that time
there were no clear and certain answers to the boundary disputes.

Modes of Acquisition of State Territory

The acquisition of territory by a state can be more correctly referred to as acquisition of

territorial sovereignty, by an existing state and member of the international community over
another state. At the very outset it needs to be made clear that the recognition of a new state
cannot be considered as acquisition of territory. There may also be cases where private
individuals or corporations gain certain rights or even authority over a territory which wasn’t
under the territorial supremacy of any recognised state. Such cases are again not within the scope
of “modes” of acquisition of state territory.

The five modes of acquiring territory have traditionally been distinguished into: cession,
occupation, accretion, subjugation and prescription. Before looking into these modes of
acquisition which have been derived from Roman law rules on property it is necessary to
understand that they are no longer appropriate or applicable. However, these “modes” of
acquisition of territory still help us explain how countries got their titles. Also these methods are
divided into two categories: original and derivative mode of acquisition. This division is on the
basis of whether the title given to the state is derived from a prior owner-state or not. Hence, only
cession is a derivative mode.

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 Cession

Cession of the state territory is the transfer of sovereignty over state territory by the owner state
to another state. Its basis lies in the intention of the concerned parties to transfer sovereignty over
the territory in question, and it rests on the principle that the right of transferring its territory is a
fundamental attribute of the sovereignty of a State. The cession may comprise a portion of the
territory of the ceding State or the totality of its territory. In the latter case, the ceding State
disappears and merges into the acquiring State. To constitute a cession it must be intended that
the sovereignty will pass.2

The only form in which a cession can occur is an agreement normally in the form of a treaty
between the ceding and the acquiring state; or between several states including the ceding and
cessionary states. A lot of times cession is an outcome of peaceable negotiation or war, and may
be without compensation although certain duties could be imposed in the acquiring state. Such
cessions are agreed upon by the interested states for different motives and for different purposes,
like gift or voluntary merger. An example is when Austria, during its war with Prussia and Italy
in 1866, ceded Venice to France as a gift. Later France ceded Venice to Italy.

Cessions have in the past been effected by transactions as part of other contracts. In early Europe
territory was commonly ceded in marriage contracts. Also a lot of times the peace treaty imposed
by the victor for a war included agreements to cede territory. However, Article 52 of the Vienna
Convention on the Law of Treaties says that if the conclusion of a treaty has been procured by
threat or use of force in violation of the principles of International Law embodied in the Charter
of the United Nations, then it is void. Hence, such forceful signing of agreements to cede
territories would be invalid today.

A famous example of cession is the acquisition of Honk Kong by the British from China.
The Treaty of Nanking was signed on the 29th of August 1842 to mark the end of the First
Opium War (1839–42) between the United Kingdom, Ireland and the Qing Dynasty of China. It
was the first of the unequal treaties against the Chinese, as Britain had no obligations in return.

2
State Territory and Territorial Sovereignty, Available at: https://sites.google.com/site/walidabdulrahim/home/my-
studies-in-english/6-state-territory-and-territorial-sovereignty

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The Qing government agreed to make Hong Kong Island a crown colony, ceding it to the British
Queen “in perpetuity” to provide British traders with a harbour where they could unload their
goods. In 1860, the colony was extended with the Kowloon peninsula and in 1898 the Second
Convention further expanded the colony with the 99-year lease of new territories. In 1984, the
governments of UK and the People’s Republic of China (PRC) concluded the Sino- British Joint
Declaration on the Question of Hong Kong, under which the sovereignty of the leased territories,
together with Hong Kong Island and Kowloon ceded under the Convention of Peking (1860),
was transferred to the PRC on 1 July 1997.3

We know that the ceded territory is transferred to the new sovereign with all international
obligations. All individuals who are subjects of the ceded state will normally become ipso facto
by the cession subjects of the acquiring state. The hardship involved for the inhabitants of the
territory, who are irrespective of their choice handed over to the new sovereign, created a
movement in favour of the claim that no cession can be valid until the inhabitants of the territory
had by a ‘plebiscite’ given their consent to such cession. In modern law, however plebiscite is
seen more as an instrument to comply with the principle of self-determination.

Occupation

Occupation is a state’s intentional claim of sovereignty over territory treated by the international
community as terra nullius, or territory that does not belong to any other state. Jennings writes it
is “the appropriation by a state of a territory, which is not at the time subject to the sovereignty of
any other state.” Article 42 of The Hague Regulations of 1907 defines occupation as follows:
“Territory is considered occupied when it is actually placed under the authority of the hostile
army. The occupation extends only to the territory where such authority has been established and
can be exercised.” The only territory which can be the object of occupation is that which doesn’t
already belong to any state, whether it is unhabited, or inhabited by persons whose community is
not considered to be a state. In another a scenario, a territory which belonged to a state, but was
afterwards abandoned maybe occupied later by another state. A territory, the sovereignty over
which is unclear or disputed cannot become an object of occupation. Acquiring states
substantiate their claim by establishing administration over the territory.

3
Available at: http://en.wikipedia.org/wiki/Treaty_of_Nanking

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In the Eastern Greenland case, the International Court of Justice stated that claims to sovereignty
“based not upon some particular act or title such as a treaty of cession but merely upon continued
display of authority, involve two elements, each of which must be shown to exist: the intention
and will to act as sovereign, and some actual exercise or display of such authority.”

Possession and Administration are the two essential factors required to constitute an effective
occupation. For possession the territory must be taken under the state’s sway (corpus) and with
the intention of acquiring sovereignty over it (animus). Possession generally involves a
settlement and some sort of formal act which announces and shows intention of the occupying
state. After taking possession, the state has to establish an administrative system within a
reasonable period of time. Administrative function is necessary because only then is the
possessor state exercising sovereignty over the territory.

The uncertainty of the extent of occupation, and the tendency of possessor states to extend their
occupation within the territory paved the way for the concept of ‘spheres of influence’. These
spaces were basically description of the territory exclusively reserved for occupation by a state
which had effectively occupied adjoining territories, by a treaty. This helped reduce disputes to
some extent.

Now we shall discuss the consequences of occupation. As soon as a territory has been occupied
by a state, the acquired title comes within the sphere of international law and no other state can
lawfully acquire it through occupation. The possessor state is thereafter responsible for all events
of international importance that happen on the territory.

Accretion

Accretion refers to the physical expansion of an existing territory through geographical process.
It is the name for increase of land due to some new formations. Such formation may be a
modification of the existing state territory for example, when an island rises within a river (not
increasing the territory, only the land) or when an island emerges in the maritime belt. It is a
customary rule of international law that enlargement of territories by new formations, takes place
ipso facto by accretion, without the state concerned taking any special step for the purpose of
extending its sovereignty. Hence, accretion too is a direct mode of acquisition of territory.

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New formations through accretion maybe natural or artificial. Artificial formations include man
made embankments, break waters, dykes etc built along the river or coastline. No state is allowed
to alter the natural condition of its own territory to the disadvantage of the natural environment
of the neighbouring countries.

Natural formations include alluvions, deltas, newborn islands, abandoned river beds. Alluvion is
an accession of land washed up on the sea shore or river bank by a gradual process of
sedimentation or suddenly when a stream washes one bank and carries it over to the other bank.
In such cases the state gets a claim over the extra territory it has gained. Abandoned river beds
occur when a river suddenly dries up leaving the bed dry and empty. In such cases if it was a
navigable boundary river, the line continues to run in the middle of the old thalweg in the
abandoned river bed. The natural processes may sometimes create new islands, which if created
in the high seas belong to no one and maybe acquired through occupation. If they arise within the
territorial sea, they accrue to the littoral state and the extent of the maritime belt may now be
calculated from the extended sea shore. Needless to say if these islands arise in rivers, lakes
within a state they are accretions to the territory of tat state.

The Canadian Supreme court in the case of Clarke4 while discussing the concept of Accretion
says that “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

4
Clarke v. City of Edmonton 1939 SCR 137

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artificial means are employed lawfully and not with the intention of producing an accretion, for
the doctrine of accretion applies to the result and not to the manner of its production.”

An interesting case in this respect is that of The Anna. During war, the British
privateer Minerva captured the Spanish vessel Anna near the mouth of the river Mississippi.
When it was brought to British Prize court, the United States claimed her on the ground that she
was captured within American territorial sea. Lord Stowell gave the claim to the Americans
because though the capture actually took three miles off the coast of the continent, the place of
capture was within 3 miles of some mud islands composed of earth and trees which has drifted
down the sea.

Subjugation

Subjugation is the acquisition of territory by conquest followed by annexation. This direct mode
of acquisition is often called title by conquest. In those days war wasn’t illegal and so making of
war was recognised as a sovereign right. There is a very fine distinction between cession and
subjugation. Like compulsory cession, conquest followed by annexation would transfer territory
by compulsion, but unlike cession, it involved no agreement between the concerned parties. In
most cases the victors in a war enforced a treaty of cession. Simple title by subjugation is rare.
Article 10 of the League of Nations Covenant made it unlawful to wage war for the purpose of
acquiring territory. The acquisition of territory through the use of force is also outlawed by the
Charter of the United Nations, which obliged the member States to refrain from the use of force
against the territorial integrity or political independence of any State. This same principle is
reaffirmed in the 1970 General Assembly “Declaration on Principles of International Law
Concerning Friendly Relations and Co-operation among States in Accordance with the Charter
of the United Nations”5. This Declaration adds that the territory of a State shall not be the object
of acquisition by another State resulting from the threat or use of force, and that no territorial
acquisition resulting from such act shall be recognized as legal.

5
Art. 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.

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It is to be noticed that conquest alone doesn’t ipso facto make the conquering state the territorial
sovereign of the conquered state. The conqueror has to after firmly establishing the conquest,
formally annex the territory once the war had ended.

After the Second World War Germany had surrendered unconditionally, Great Britain, U.S.A,
Russia and France signed a joint declaration and assumed ‘supreme authority’ with respect to
Germany. It was stated that the assumption of these powers did not effect annexation of
Germany and that her future status would be determined by the four states issuing a declaration.
In 1990 Federal Republic of Germany and German Democratic Republic became territory of the
German state when the four powers renounced pursuant to agreements their original status as
occupants.

Although subjugation is an original mode of acquisition, since the sovereignty of the acquiring
state is not derived from that of the state formerly sovereign of the territory, the new sovereign is
nevertheless the successor of the former. Doctrine and practice suggest that the national status of
the subjects of the subjugated state and those domiciled on the annexed territory who remain on
the annexed state become ipso facto subjects of the subjugating state by the act of subjugation.

A more recent example of annexation would be that of Iraq over Kuwait in 1990. Iraq accused
Kuwait of stealing Iraqi oil through slant drilling. The invasion started on 2 August 1990, and
within two days of intense combat, most of the Kuwaiti Armed Forces were either overrun by
the Iraqi Republican Guard or escaped to neighbouring Saudi Arabia and Bahrain. The state of
Kuwait was annexed, and Hussein announced in a few days that it was the 19th province of Iraq.
After the decisive Iraqi victory, Saddam Hussein installed Ala a Hussein Ali as the Prime
Minister of the “Provisional Government of Free Kuwait” and Ali Hassan al-Majid as the de
facto Governor of Kuwait. The Iraqi invasion and occupation of Kuwait was unanimously
condemned by all major world powers. Even countries traditionally considered to be close Iraqi
allies, such as France and India, called for immediate withdrawal of all Iraqi forces from Kuwait.
On 3 August 1990, the UN Security Council passed Resolution 660 6 condemning the Iraqi

6
RESOLUTION 660 (1990), Adopted by the Security Council at its 2932nd meeting, on 2 August 1990, Available
at:https://www.fas.org/news/un/iraq/sres/sres0660.htm

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invasion of Kuwait and demanding that Iraq unconditionally withdraw all forces deployed in
Kuwait.

Prescription

Prescription can be defined as ‘the acquisition of sovereignty over a territory through continuous
and undisturbed exercise of sovereignty over it during such a period as is necessary to create
under the influence of historical development the general conviction that the present condition of
things is in conformity with the international order.’7

There was no rule laid down as regards the length of time or other circumstances necessary to
create such a title by prescription. The conditions differ from case to case basis. As long as other
states keep up protests and claims, the actual exercise of sovereignty isn’t disturbed, nor is there
the general conviction that the present condition of things is in conformity with international
order. After such protests cease however, there may be a situation arising where it becomes in
conformity with the international order. The question of what time and under what circumstances
such a condition of things arises is one of fact merely.

There are innumerable circumstances at work besides the mere lapse of time to create conviction
that in the interest of stability and order the present owner should be considered the rightful
owner of the territory. Also, since a lot of these factors may be political or historical in nature the
length of time may differ considerably in different cases.

Whereas many authors like Oppenheim and Schwarzenbenger consider these to be two different
subjects many modern authors like to divide Prescription into two types: either ‘extinctive’ or
‘acquisitive’. Prescription used in the sense of extinctive prescription can be similar to “law of
limitation”. Suppose country A has an International claim against country B but fails to bring it
before any international tribunal within a reasonable period of time without any obstruction from
country B then, it may be rejected by the tribunal later. This feature as applied to property law
says that his substantive rights are not abolished though he cannot enforce them with action
anymore. ‘Acquisitive Prescription’ deals with cases where the original title is invalid or where

7
Sir R.Jennings and Sir A.Watts, Oppenheim’s International Law – Vol.I Peace, 9th ed., Longman 1996, pp.706

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original title of the territory is impossible to prove. The doctrine says that the party who succeeds
in establishing its title gets the substantive rights while those of the former state are abolished.

The following illustrations will make the concept clearer. Suppose, a state had under mala fide
intention held an island by occupation knowing that it belonged to another country. If it succeeds
in keeping its possession for so long that the former possessor has given up on protesting and the
possession remains undisturbed for long then it may be said that the condition has become in
conformity with the international order and the title ay rightfully be passed on to the new
possessor state by prescription. Similarly, if a map has an incorrectly drawn border line which
allots to one of the states a certain tract of territory and is for a long period of time considered to
be correct; the conviction will prevail that the present condition is in conformity with the
international order. Even if afterwards the wronged state protests and demands the line to be
redrawn the limitation principle works and the claim will be rejected.

Loss of State Territory

Now that we have discussed all modes of acquiring territory or rather acquiring sovereignty over
territory we can easily point out the corresponding methods of losing state territory. These are
cession, dereliction, operation of nature, subjugation, prescription and there is a sixth mode that
is Revolt. Loss of territory by subjugation, cession and prescription is pretty straightforward and
requires no further explanation. It’s simply the corresponding loss of a territory due to the gain of
that territory by another state.

Revolt on the other hand has been accepted as a mode of losing territory to which there is no
corresponding mode of acquisition. There is no hard and fast rule regarding the time when a state
which has broken off from another can be established permanently as another state. A revolt
however seems to be more of a political issue than a legal mode of loss of territorial sovereignty.

Dereliction as a mode of losing territory corresponds to occupation. Dereliction frees a territory

from sovereignty of the present state possessor. When the owner state completely abandons a
territory with the intention of withdrawing from it permanently and relinquishing sovereignty
over it dereliction is effected. Actual abandonment alone cannot amount to dereliction as it is

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assumed that the owner will and can retake possession. Hence, just like occupation there has to
be an abandonment of territory (corpus) and an intention (animus) to withdraw too.

We shall lastly discuss the loss of territory due to natural causes, as an operation of nature. Just
like accretion adds to state territory, disappearance of land due to natural factors is ipso facto a
loss of state territory. Thus, if an island submerged or a river changes its course so as to eat into
part of the territory of the state there is loss of territory. This topic is widely gaining importance
nowadays in the global scenario because the rapid changes in the environment have caused a
substantive rise in sea level. This has lead to the threat submergence of several island nations.
These nations are facing severe issues and are looking for support from other countries as their
territory is under the threat of completely vanishing altogether. Vanuatu, Marshall Islands, Fiji
etc are some of the countries that have already lost major portions of their territory due to rising
sea levels and have started asking neighbouring countries to provide their subjects with territory
to live. These residents have now formed a class of people called environmental refugees and
their rights under international law are a subject of wide discussion.

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Conclusion

So through this project we have seen firstly the importance of territory for a State to exist,
exercise of sovereignty by a state over its territory and the kind of conflicts that might emerge
due to state boundaries. Also the various methods by states acquire and lose territory were briefly
discussed. In conclusion I would like to say that issues regarding state territory and sovereignty
are going to crop up very often in the international scenario considering the ever growing
population and its needs. There is a strong requirement for a powerful and authoritative
international agency which can effectively take steps to solve and possibly avoid issues that
concern state territory. With an increase of globalisation in today’s world, there is already a fair
portion of every state’s population that is residing outside its own territory. International law
principles need to be developed so as to keep in pace with the rampant globalisation and
industrialisation across the globe.

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