University of Cambridge

Law Tripos 2019-2020 International Law

Territory and the Global Commons

Dr. Sandesh Sivakumaran

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1. Introduction

2. Territory, territorial sovereignty and title to territory

2.1 Territory

The territory of a state comprises all land areas, internal waters (such as rivers and lakes), the
territorial sea, as well as the superjacent airspace over these land areas, internal waters and
territorial sea.

2.2 Territorial sovereignty

Island of Palmas case (1928), 2 RIAA 829, 838-39:

‘Sovereignty in the relations between States signifies independence. Independence in
regard to a portion of the globe is the right to exercise therein, to the exclusion of any
other State, the functions of a State. The development of the national organization of
States during the last few centuries and, as a corollary, the development of
international law, have established this principle of the exclusive competence of the
State in regard to its own territory in such a way as to make it the point of departure in
settling most questions that concern international relations.

2.3 Title to territory

Title to territory refers to the factual and legal conditions which give rise to a valid claim to
territorial sovereignty against other states.

Title to territory is relative rather than absolute. Legal Status of Eastern Greenland PCIJ Ser
A/B No 53, 22, 46:

‘In most of the cases involving claims to territorial sovereignty which have come
before an international tribunal, there have been two competing claims to the
sovereignty, and the tribunal has had to decide which of the two is the stronger… [I]n
many cases the tribunal has been satisfied with very little in the way of the actual
exercise of sovereign rights, provided that the other State could not make out a
superior claim.’

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Title to territory gives rise to territorial sovereignty.

3. The significance of territory

Territory as a component of statehood. Montevideo Convention 1933, Article 1

Competition for control over territory

Territorial disputes and boundary disputes

North Sea Continental Shelf cases ICJ Rep 1969, 3, 32: “The appurtenance of a given
area, considered as an entirety, in no way governs the precise delimitations of its
boundaries, any more than uncertainty as to boundaries can affect territorial rights”

4. Modes of acquisition of title to territory

Five classic modes of acquiring title to territory: (1) occupation; (2) prescription; (3)
subjugation/conquest; (4) accretion; (5) cession.

4.1 Occupation

Occupation is a mode of acquiring title to territory through the exercise of sovereign authority
over territory that belongs to no-one.

Only applies in respect of terra nullius.

Key elements: intention to act as sovereign; and exercise of sovereign authority.

4.1.1 Terra nullius

Mabo v Queensland (No 2) 112 ILR 457

Western Sahara ICJ Rep 1975, 12, para. 80:

‘Whatever differences of opinion there may have been among jurists, the State
practice of the [colonial] period indicates that territories inhabited by tribes or peoples
having a social and political organization were not regarded as terrae nullius. … in
the case of such territories the acquisition of sovereignty was not generally considered
as effected unilaterally through "occupation" of terra nullius by original title but
through agreements concluded with local rulers.’

Occupation was usually preceded by discovery. However, discovery in and of itself was not
sufficient for title to pass.

Clipperton Island case (France v Mexico) (1932) 26 AJIL 390.

4.1.2 Intention to act as sovereign and exercise of sovereign authority

Legal Status of Eastern Greenland PCIJ Ser A/B No 53, 22, 45-6:

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 ‘[A] claim to sovereignty based not upon some particular act or title such as a treaty
of cession but merely upon continued display of authority, involves two elements
each of which must be shown to exist: [first] the intention and will to act as sovereign,
and [second] some actual exercise or display of such authority’.

The two elements have been affirmed by the ICJ. See case concerning Sovereignty over
Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) 2002 ICJ Rep 625 para 134;
Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v Honduras) ICJ Rep 2007, para. 172.

Island of Palmas case (1928) 2 RIAA 829: ‘The actual, continuous and peaceful display of
state functions is in case of dispute the sound and natural criterion of territorial sovereignty.’

What constitutes manifestations of sovereign authority or display of state functions will vary
depending on the nature of the territory. Island of Palmas case:

“each case must be appreciated in accordance with [its] particular circumstances”.

(a) Exercise of sovereign functions

Acts must be performed by the state in the exercise of its sovereign powers. Generally
speaking, we are concerned with ‘legislative, administrative or judicial assertions of authority
over the disputed area’ (Eritrea-Ethiopia Delimitation Decision 2002 ILM 1057, para. 3.29).

By whom?

The acts must be undertaken by the state. Acts undertaken by private individuals are unlikely
to be sufficient.

Anglo-Norwegian Fisheries case, ICJ Rep 1951, p.184, per Judge McNair:

‘the independent activity of private individuals is of little value unless it can be shown
that they have acted in pursuance of a licence or some other authority received from
their Governments or that in some other way their Governments have asserted
jurisdiction through them.’

Case concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia),
ICJ Rep 2002, 625, 683:

‘activities by private persons cannot be seen as effectivités if they do not take place on
the basis of official regulations or under governmental authority’.

Kasikili/Sedudu Island case (Botswana/Namibia), ICJ Rep 1999, para. 98.

What?

Examples of effectivités in the case law.

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Case concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia),
ICJ Rep 2002, 625, para. 148:

‘the activities … are modest in number … but they are diverse in character and
include legislative, administrative and quasi-judicial acts. They cover a considerable
period of time and show a pattern revealing an intention to exercise State functions in
respect of the two islands in the context of the administration of a wider range of
islands.’

Case concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South
Ledge (Malaysia/Singapore) ICJ Rep 2008, para. 274.

Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea,
ICJ Rep 2007, paras 176-208.

The acts must be undertaken with the intention to act as sovereign; the acts that characterize
sovereignty might be different in different places. The Indo-Pakistan Western Boundary
(Rann of Kutch) between India and Pakistan (1968) XVII RIAA 1, 554:

‘The rights and duties which by law and custom are inherent in, and characteristic of,
sovereignty present considerable variations in different circumstances according to
time and place, and in the context of various political systems.’

(b) Effective and continuous exercise of those functions

The exercise of the functions must be both effective and continuous. Continuous does not
mean each and every day; effective does not mean that all areas of territory have to be settled.
What is effective and continuous will vary depending on the territory at issue.

Island of Palmas case (1928), 2 RIAA 829, 840:

‘Manifestations of territorial sovereignty assume … different forms, according to

conditions of time and place. Although continuous in principle, sovereignty cannot be
exercised in fact at every moment on every point of a territory. The intermittence and
discontinuity compatible with the maintenance of the right necessarily differ
accordingly as inhabited or uninhabited regions are involved, or regions enclosed
within territories in which sovereignty is incontestably displayed or in regions
accessible from, for instance, the high seas.’

Legal Status of Eastern Greenland PCIJ Ser A/B No 53, 22:

‘It is impossible to read the records of the decisions in cases as to territorial

sovereignty without observing that in many cases the tribunal has been satisfied with
very little in the way of the actual exercise of sovereign rights, provided that the other
State could not make out a superior claim. This is particularly true in the case of
claims to sovereignty over areas in thinly populated or unsettled countries.’

Territorial Sovereignty and Scope of the Dispute between Eritrea and Yemen (1998) XXII
RIAA 209, 313 para. 453.

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Case concerning Sovereignty over Pulau Ligitan and Pulau Sipadan case, ICJ Rep 2002, 625,
para. 134:

‘In particular in the case of very small islands which are uninhabited or not
permanently inhabited – like Ligitan and Sipadan, which have been of little economic
importance (at least until recently) – effectivités will indeed generally be scarce.’

(c) Open and public exercise of those functions

Clipperton Island arbitration (France/Mexico, 1932).

(d) Critique

Case concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia),
ICJ Rep 2002, 625, Dissenting Opinion of Judge ad hoc Franck, 691:

‘To weigh, on the one hand, occasional administration of turtle egg harvesting and of
a bird sanctuary … together with the establishment of a few navigational lights (by
Britain/Malaysia) against, on the other hand, naval and air patrolling and piracy-
control (by Indonesia) appears to me like trying to weigh precisely a handful of
feathers against a handful of grass: it can be done, but not very convincingly’ (para.
17).

Instead, he argued that, ‘where a treaty specifies a boundary line or principle of territorial
allocation, it should be interpreted as broadly as necessary to resolve any conflict of
jurisdiction in the absence of clear evidence of a contrary intent.’ (para. 6).

4.2 Prescription

Prescription is a mode of acquiring title to territory through the exercise of effective

authority, for a prolonged period of time, over territory that is not terra nullius.

4.2.1 Exercise of sovereign functions and intention to act as sovereign

Largely similar to occupation.

4.2.2 Acquiescence of the other interested state

Chamizal arbitration (US v Mexico) (1911) 5 AJIL 782:

‘it is impossible to hold that the possession of El Chamizal by the United States was
undisturbed, uninterrupted and unchallenged from the date of the treaty … [(1848)
which established part of the Rio Grande as the boundary between Mexico and the US
until the case was presented.] On the contrary it may be said that the physical
possession taken by citizens of the United Sates and the political control exercised by
the local and federal governments, have been constantly challenged and questioned by
the Republic of Mexico, through its accredited diplomatic agents.’

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Case concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South
Ledge (Malaysia/Singapore) ICJ Rep 2008, para. 121:

‘Under certain circumstances, sovereignty over territory might pass as a result of the
failure of the Sate which has sovereignty to respond to conduct a titre de souverain of
the other State or, as Judge Huber put it in the Island of Palmas case, to concrete
manifestations of the display of territorial sovereignty by the other State. Such
manifestations of the display of sovereignty may call for a response if they are not to
be opposable to the State in question. The absence of reaction may well amount to
acquiescence. The concept of acquiescence ‘is equivalent to tacit recognition
manifested by unilateral conduct which the other party may interpret as consent’
(Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United
States of America), Judgment, I.C.J. Reports 1984, p.305, para.130). That is to say,
silence may also speak, but only if the conduct of the other State calls for a response.’

The notion of ‘peaceful’ display of state functions

4.3 Subjugation/conquest

Subjugation refers to the acquisition of territory through conquest, followed by annexation. It

is no longer a lawful means of acquiring title to territory.

Subjugation is prohibited in international law

UN Charter, Article 2(4): ‘All Members shall refrain in their international relations
from the threat or use of force against the territorial integrity or political independence
of any state, or in any other manner inconsistent with the Purposes of the United
Nations.’

Articles on the Responsibility of States for Internationally Wrongful Acts, Article 41:
‘No State shall recognize as lawful a situation created by a serious breach [by a State
of an obligation arising under a peremptory norm of general international law] nor
render aid or assistance in maintaining that situation.’

UN General Assembly Resolution 2625 (XXV) (1970): ‘No territorial acquisition

resulting from the threat or use of force shall be recognized as legal.’

State practice is along these lines.

Invasion of Kuwait by Iraq. UN Security Council Resolution 662 (1990): ‘the

annexation of Kuwait by Iraq under any form and whatever pretext has no legal
validity and is considered null and void’

Annexation of Crimea by the Russian Federation. Draft UN Security Council

Resolution S/2014/189: ‘no territorial acquisition resulting from the threat or use of
force shall be recognized as legal’. Note that the draft was vetoed by Russia.

Can title to territory be acquired through the use of force in self-defence?

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 The argument is ‘based upon a curious assumption that, provided a war is lawful in
origin, it goes on being lawful to whatever lengths it may afterwards be pursued. The
grave dangers of abuse inherent in any such notion are obvious.’ RY Jennings, The
Acquisition of Territory in International Law (1963) p.55.

4.4 Accretion

Accretion refers to the increase of land through new formations.

Accretion distinguished from avulsion

Chamizal arbitration (US v Mexico) (1911) 5 AJIL 782

4.5 Cession

Cession refers to the consensual transfer of sovereignty from one state to another.

Examples of cession
The sale of Alaska by the USSR to the US (1867)
The Louisiana purchase by the US from France (1803)
Transfer of Gibraltar from Spain to the UK (1713). Note VCLT article 52.
Swapping of land between Belgium and the Netherlands (2017)

Cession is subject to the basic principle that a state cannot cede what it does not have.

5. What are not modes of acquisition

5.1 Discovery

Discovery of territory, in and of itself, is insufficient for title to that territory to pass to the
discovering state.

5.2 Contiguity

Contiguity refers to the proximity between an island and the closest continental territory or
island of significant size.

Island of Palmas case (1928), 2 RIAA 829, 854

Western Sahara advisory opinion, ICJ Rep 1975, 12, para. 92:

‘the information before [the Court] shows that the geographical unity of Western
Sahara with Morocco is somewhat debatable, which also militates against giving
effect to the concept of contiguity. Even if the geographical contiguity of Western
Sahara with Morocco could be taken into account in the present connection, it would
only make the paucity of evidence of unambiguous display of authority with respect
to Western Sahara more difficult to reconcile with Morocco’s claim to immemorial
possession.’

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Territorial Sovereignty and Scope of the Dispute between Eritrea and Yemen (1998) XXII
RIAA 209, 313 para. 458:

‘there is some presumption that any islands off one of the coasts may be thought to
belong by appurtenance to that coast unless the State on the opposite coast has been
able to demonstrate a clearly better title.’

6. Important concepts

6.1 Intertemporal law

Island of Palmas (Netherlands/US), (1928) 2 RIAA 829, 845:

‘[A] juridical fact must be appreciated in the light of the law contemporary with it,
and not of the law in force at the time when a dispute in regard to it arises or falls to
be settled … a distinction must be made between the creation of rights and the
existence of rights. The same principle which subjects the act creative of a right to the
law in force at the time the right arises, demands that the existence of the right, in
other words its continued manifestation, shall follow the conditions required by the
evolution of law.’

6.2 Critical date

The critical date is the date at which the dispute over the territory has crystallized.

Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
ICJ Rep 2007, para. 117:

‘the significance of a critical date lies in distinguishing between those acts performed
à titre de souverain which are in principle relevant for the purpose of assessing and
validating effectivités, and those acts occurring after such critical date, which are in
general meaningless for that purpose, having been carried out by a State which,
already having claims to assert in a legal dispute, could have taken those actions
strictly with the aim of buttressing those claims. Thus a critical date will be the
dividing line after which the Parties’ acts become irrelevant for the purposes of
assessing the value of effectivités.’

See also Territorial and Maritime Dispute (Nicaragua v Colombia), ICJ Rep 2012, 624, 652.

Case concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia),
ICJ Rep 2002, 625, para. 135:

‘cannot take into consideration acts having taken place after the date on which the
dispute between the Parties crystallized unless such acts are a normal continuation of
prior acts and are not undertaken for the purpose of improving the legal position of
the Party which relies on them.’

6.3 Recognition and acquiescence

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Legal Status of Eastern Greenland PCIJ Ser A/B No 53, 22.

6.4 Estoppel

Legal Status of Eastern Greenland PCIJ Ser A/B No 53, 22

Case concerning the Temple of Preah Vihear (Cambodia v Thailand) ICJ Rep 1962, 6

7. Self-determination

7.1 The status of the right

UN Charter, Article 1(2): ‘The Purposes of the United Nations are: … (2) To develop
friendly relations among nations based on respect for the principle of equal rights and self-
determination of peoples, and to take other appropriate measures to strengthen universal
peace’.

Declaration on the Granting of Independence to Colonial Territories and Peoples (GA Res
1514 (1960)): ‘All peoples have the right to self-determination; by virtue of that right they
freely determine their political status and freely pursue their economic, social and cultural
development.’

International Covenant on Civil and Political Rights, Article 1; International Covenant on

Economic, Social and Cultural Rights, Article 1: ‘All peoples have the right of self-
determination. By virtue of that right they freely determine their political status and freely
pursue their economic, social and cultural development.’

General Assembly Res 2625 (XXV)(1970): ‘By virtue of the principle of equal rights and
self-determination of peoples enshrined in the Charter of the United Nations, all peoples have
the right freely to determine, without external interference, their political status and to pursue
their economic, social and cultural development, and every State has the duty to respect this
right in accordance with the provisions of the Charter.’

Case concerning East Timor (Portugal v Australia) ICJ Rep 1995, 90, para. 29: ‘In the
Court’s view, Portugal’s assertion that the right of peoples to self-determination, as it evolved
from the Charter and from United Nations practice, has an erga omnes character, is
irreproachable. The principle of self-determination of peoples … is one of the essential
principles of contemporary international law.’

Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965,
Advisory Opinion, 25 February 2019, para 180: ‘Since respect for the right to self-
determination is an obligation erga omnes, all States have a legal interest in protecting that
right’.

7.2 The concept

Self-determination is essentially the right of peoples to ‘freely determine their political status
and freely pursue their economic, social and cultural development’.

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What is a people?

Final Report and Recommendations of an International Meeting of Experts on the Further

Study of the Concept of the Right of People for UNESCO, SNS-89/CONF.62/7 (22 February
1990):
(a) ‘A group of individual human beings who enjoy some or all of the following
common features:
(i) A common historical tradition;
(ii) Racial or ethnic identity;
(iii) Cultural homogeneity;
(iv) Linguistic unity;
(v) Religious or ideological affinity;
(vi) Territorial connection;
(vii) Common economic life.
(b) The group must be of a certain number who need not be large (e.g. the people of
micro States) but must be more than a mere association of individuals within a
State.
(c) The group as a whole must have the will to be identified as a people or the
consciousness of being a people – allowing that groups or some members of such
groups, though sharing the forgoing characteristics, may not have the will or
consciousness.
(d) Possibly the group must have institutions or other means of expressing its
common characteristics and will for identity.’

7.3 Application of the right

The colonial context.

GA Res 1514 (XV)(1960)

ICCPR and ICESCR, Article 1(3): ‘The States Parties to the present Covenant,
including those having responsibility for the administration of Non-Self-Governing
and Trust Territories, shall promote the realization of the right of self-determination,
and shall respect that right, in conformity with the provisions of the Charter of the
United Nations.’

Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa), advisory opinion, ICJ Rep 16, para. 52: ‘The subsequent
development of international law in regard to non-self-governing territories, as
enshrined in the Charter of the United Nations, made the principle of self-
determination applicable to all of them.’

Outside the colonial context.

7.4 Exercise of the right

7.4.1 External self-determination

GA Res 2625 (XXV)(1970):

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 ‘The establishment of a sovereign and independent State, the free association or
integration with an independent State or the emergence into any other political status
freely determined by a people constitute modes of implementing the right of self-
determination by that people.’

7.4.2 Internal self-determination

Internal self-determination is of importance in already independent states. The possibility of

remedial secession is contested.

Reference re Secession of Quebec case, 115 ILR 136, para. 126:

‘The recognized sources of international law establish that the right to self-
determination of a people is normally fulfilled through internal self-determination – a
people’s pursuit of its political, economic, social and cultural development within a
framework of an existing state. A right to external self-determination (which in this
case potentially takes the form of an assertion of a right to unilateral secession) arises
in only the most extreme of cases and, even then, under carefully defined
circumstances.’

Cf Accordance with International Law of the Unilateral Declaration of Independence in

Respect of Kosovo, Advisory Opinion, ICJ Rep 2010, 403, 438, para. 82:

‘A number of participants in the present proceedings have claimed … that the

population of Kosovo has the right to create an independent State either as a
manifestation of a right to self-determination or pursuant to what they described as a
right of “remedial secession” … Whether, outside the context of non-self-governing
territories and peoples subject to alien subjugation, domination and exploitation, the
international law of self-determination confers upon part of the population of an
existing State a right to separate from that State is, however, a subject on which
radically different views were expressed … Similar differences existed regarding
whether international law provides for a right of “remedial secession” and, if so, in
what circumstances.’

8. Uti possidetis juris

Case concerning the Frontier Dispute (Burkina Faso/Republic of Mali), ICJ Rep 1986, 554,
566, para. 23:
‘The essence of the principle lies in its primary aim of securing respect for the
territorial boundaries at the moment when independence is achieved. Such territorial
boundaries might be no more than delimitations between different administrative
divisions or colonies all subject to the same sovereign. In that case, the application of
the principle of uti possidetis resulted in administrative boundaries being transformed
into international frontiers in the full sense of the term.’

‘Its obvious purpose is to prevent the independence and stability of new States being
endangered by fratricidal struggles provoked by the challenging of frontiers following
the withdrawal of the administering power.’ (565, para. 20)

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The principle relates to the importance of the stability of boundaries.

Badinter Commission, Opinion No 2, 92 ILR 168:

‘whatever the circumstances, the right to self-determination must not involve changes
to existing frontiers at the time of independence (uti possidetis juris) except where the
states concerned agree.’

Difficulties with the principle.

Colonial boundaries often drawn up in London, Paris, Brussels, etc.

‘We have been engaged … in drawing lines upon maps where no white man’s
feet have ever trod; we have been giving away mountains and rivers and lakes
to each other, but we have only been hindered by the small impediment that
we never knew exactly where the mountains and rivers and lakes were.’ (Lord
Salisbury, as quoted in Territorial Dispute (Libya/Chad) 1964 ICJ Rep 6, 53,
per Judge Ajibola)

Suitability of an administrative boundary as an international boundary

Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), ICJ Rep
1992, 355

Tension with the right of self-determination

General Assembly Res 1514 (XV)(1960):

‘All peoples have the right to self-determination; by virtue of that right
they freely determine their political status and freely pursue their
economic, social and cultural development.’ (para. 2)
‘Any attempt aimed at the partial or total disruption of the national
unity and the territorial integrity of a country is incompatible with the
purposes and principles of the Charter of the United Nations.’ (para. 6)

General Assembly Res 2625 (XXV)(1970)

Case concerning the Frontier Dispute (Burkina Faso/Republic of Mali), ICJ

Rep 1986, 554

9. The global commons

The global commons refers to those areas that are not subject to the sovereignty of states but
are shared by states generally.

9.1 The idea of the global commons

The importance of the global commons

The tragedy of the global commons. Garrett Hardin, ‘The Tragedy of the Commons’ (1968)
162(3859) Science 1243, 1244.

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 ‘The tragedy of the commons develops in this way. Picture a pasture open to all. It is
to be expected that each herdsman will try to keep as many cattle as possible on the
commons. Such an arrangement may work reasonably satisfactorily for centuries
because tribal wars, poaching, and disease keep the numbers of both man and beast
well below the carrying capacity of the land. Finally, however, comes the day of
reckoning, that is, the day when the long-desired goal of social stability becomes a
reality. At this point, the inherent logic of the commons remorselessly generates
tragedy. As a rational being, each herdsman seeks to maximize his gain. Explicitly or
implicitly, more or less consciously, he asks, "What is the utility to me of adding one
more animal to my herd?" This utility has one negative and one positive component.
(1) The positive component is a function of the increment of one animal. Since the
herdsman receives all the proceeds from the sale of the additional animal, the positive
utility is nearly + 1. (2) The negative component is a function of the additional
overgrazing created by one more animal. Since, however, the effects of overgrazing
are shared by all the herdsmen, the negative utility for any particular decision-making
herdsman is only a fraction of -1. Adding together the component partial utilities, the
rational herdsman concludes that the only sensible course for him to pursue is to add
another animal to his herd. And another; and another . . . But this is the conclusion
reached by each and every rational herdsman sharing a commons. Therein is the
tragedy. Each man is locked into a system that compels him to increase his herd
without limit in a world that is limited. Ruin is the destination toward which all men
rush, each pursuing his own best interest in a society that believes in the freedom of
the commons. Freedom in a commons brings ruin to all.’

9.2 Specific areas

9.2.1 The high seas

Importance of the high seas

What is the high seas?

Geneva Convention on the High Seas 1958, Article 1: ‘The term “high seas” means
all parts of the sea that are not included in the territorial sea or in the internal waters of
a State.’

UNCLOS, Article 86: ‘The provisions of this Part [on the High Seas] apply to all
parts of the sea that are not included in the exclusive economic zone, in the territorial
sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic
State.’

UNCLOS, Article 89: ‘No State may validly purport to subject any part of the high seas to its
sovereignty.’

UNCLOS, Article 87: ‘The high seas are open to all States, whether coastal or land-locked.
Freedom of the high seas is exercised under the conditions laid down by this Convention and
by other rules of international law.’

UNCLOS, Article 88: ‘The high seas shall be reserved for peaceful purposes.’

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9.2.2 The deep seabed

Importance of the deep seabed

Declaration of Principles Governing the Seabed and the Ocean Floor, and the Subsoil thereof,
beyond the Limits of National Jurisdiction (GA Res 2749 (XXV)):

‘there is an area of the seabed and the ocean floor, and the subsoil thereof [that are]
beyond the limits of national jurisdiction …

1. … the resources of the area, are the common heritage of mankind.

2. The area shall not be subject to appropriation … and no State shall claim or
exercise sovereignty or sovereign rights over any part thereof. …

7. The exploration of the area and the exploitation of its resources shall be carried
out for the benefit of mankind as a whole, irrespective of the geographical location
of States, whether land-locked or coastal, and taking into particular consideration
the interests and needs of the developing countries. …’

UNCLOS 1982, Part XI

Agreement relating to the Implementation of Part XI of the United Nations Convention on the
Law of the Sea 1994

International Seabed Authority ‘Mining Code’

9.2.3 The polar regions

The Antarctic region

The Antarctic Treaty 1959, Article IV(2):

‘No acts or activities taking place while the present Treaty is in force shall
constitute a basis for asserting, supporting or denying a claim to territorial
sovereignty in Antarctica or create any rights of sovereignty in Antarctica. No
new claim, or enlargement of an existing claim, to territorial sovereignty in
Antarctica shall be asserted while the present Treaty is in force.’

Meetings of the parties

Protocol on Environmental Protection to the Antarctic Treaty (1991); Convention for

the Conservation of Antarctic Marine Living Resources (1982); Convention for the
Conservation of Antarctic Seals (1972).

Cf the Arctic region

No legal framework similar to the Antarctic treaty.

1973 Agreement on the Conservation of Polar Bears

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 The Arctic Council
US Arctic National Security Directive 2009

Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean
2018

9.2.4 Outer space

Outer space is not under the sovereignty of any particular state.

GA Res 1721 (XVI) (1961): ‘Outer space and celestial bodies are free for exploration and use
by all States in conformity with international law and are not subject to national
appropriation’.

GA Res 1962 (XVIII) (1963): ‘the exploration and use of outer space shall be carried out for
the benefit and in the interests of all mankind’; ‘outer space and celestial bodies are free for
exploration and use by all States’; ‘outer space and celestial bodies are not subject to national
appropriation by claim of sovereignty, by means of use or occupation, or by any other
means.’

Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer
Space, including the Moon and Other Celestial Bodies 1967:

‘outer space, including the moon and other celestial bodies, is not subject to national
appropriation by claim of sovereignty, by means of use or occupation, or by any other
means’ (Article II)

‘The exploration and use of outer space, including the Moon and other celestial
bodies, shall be carried out for the benefit and in the interests of all countries,
irrespective of their degree of economic or scientific development, and shall be the
province of all mankind.’ (Article I)

Agreement Governing the Activities of States on the Moon and Other Celestial Bodies 1979

Article 11(1): ‘the moon and its natural resources are the common heritage of
mankind’.

Article 11(2): ‘The moon is not subject to national appropriation by any claim of
sovereignty, by means of use or occupation, or by any other means.’

Article 11(3): ‘Neither the surface nor the subsurface of the moon, nor any part
thereof or natural resources in place, shall become property of any State …. The
placement of personnel, space vehicles, equipment, facilities, stations and installations
on or below the surface of the moon, including structures connected with its surface
or subsurface, shall not create a right of ownership over the surface or the subsurface
of the moon or any areas thereof.’

Article 11(5): ‘States Parties to this Agreement hereby undertake to establish an

international régime, including appropriate procedures, to govern the exploitation of
the natural resources of the moon as such exploitation is about to become feasible.’

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 Article 11(7): ‘The main purposes of the international regime to be established shall
include:
(a) The orderly and safe development of the natural resources of the moon;
(b) The rational management of those resources;
(c) The expansion of opportunities in the use of those resources;
(d) An equitable sharing by all States Parties in the benefits derived from those
resources, whereby the interests and needs of the developing countries, as well as the
efforts of those countries which have contributed either directly or indirectly to the
exploration of the moon, shall be given special consideration.’

9.3 Themes

The global commons v territory under sovereign control

Free for all v controlled management

Establishment of institutional arrangements

Reading

Shaw, International Law (8th ed, 2017), Ch 9

Cases

Harris, Cases and Materials on International Law (8th edn, 2015), Ch 5

Main cases
Island of Palmas Case (Netherlands v US) (1928) 2 RIAA 829
Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia, Judgment, (2002)
ICJ Rep, paras. 127-149
Case Concerning Territorial and Maritime Dispute Between Nicaragua and Honduras in the
Caribbean Sea (Nicaragua v Honduras), Judgment, ICJ Rep 2007, paras. 117-131 (critical
date), 151-158 (uti possidetis), 172-208 (effectivités).
Sovereignty over Pedra Branca/Pulau Batu Puteh (Malaysia/Singapore), Judgment, ICJ Rep
2008, esp. paras. 32, 62-75 (original title), 118-125 (passing of title)

Further Reading

Anghie, Imperialism, sovereignty, and the making of international law (Cambridge

University Press 2005), Chapter 2
Byers, International law and the Arctic (Cambridge University Press 2013), Chapter 1
Hardin ‘The Tragedy of the Commons’, 162 (1968) Science, 1243-1248
Jennings, The Acquisition of Territory in International Law (1963)

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Joyner, ‘Legal Implications of the Concept of the Common Heritage of Mankind’ 35 (1986)
ICLQ 190
Kohen and Hébié (2012), ‘Territory, Acquisition’, in Wolfrum (ed.), The Max Planck
Encyclopedia of Public International Law, Vol. IX, Oxford University Press, 887–900
O’Keefe, Legal Title versus Effectivités: Prescription and the Promise and Problems of
Private Law Analogies (2011) 13 International Community Law Review 147
Pahuja, ‘Conserving the world’s resources?’ in Crawford and Koskenniemi (eds), The
Cambridge Companion to International Law (Cambridge University Press, 2012),
398-420, esp. 409-418
Pardo (1968-69), ‘Who Will control the seabed?’ 47 Foreign Affairs 123
Ratner, ‘Drawing a Better Line: Uti Possidetis and the Borders of New States’ 90 (1996),
AJIL 590-624
Saul and Stephens (eds), Antarctica in International Law (Hart 2015), Introduction
Waibel, Falkland Islands/Islas Malvinas (2011) Max Planck Encyclopedia

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