State Territory

• International Law is founded upon the political unit of the State. The essential
characteristic of the State is that it enjoys SOVERIGN power; that SOVERIGNITY will
be both internal in respect of its own territory and external in the form of its identity
and equality as an international legal person.
• A State must posses territory.
• There is a close connection in International Law between the concepts of THE STATE,
SOVEREIGNTY, TERRITORY and JURISDICTION.
• Territory is a matter central concern to International Law. Any system of International
Law would be inadequate if it did not have rules as to how title to territory might be
acquired; such rules ae necessary if only to minimise the risk of conflicts over territory
• Concept of TERRITORIAL SOVERIGNITY is central to international society
• It is reflected in Article 2 (4) and Article 2 (7) of UN Charter and in Declaration 1970.
• There are at least four ways through which a State can acquire territory. occupation,
prescription, cession, and accretion.
• Prior to the emergence of the United Nations, States could also acquire territory through
conquest or annexation by war. However, the UN Charter has now prohibited the use of
force by States, and even though States may still use force in self-defence (Article 51),
this does not entitle States to keep
captured territory as their property.
• These modes are not exclusive or exhaustive
After 1898, Spanish American War,
Spain ceded its sovereignty over the
Philippines to the United States in
the 1898 Treaty of Paris
In 1906, an American General
visited the Island of Palmas (now
known as Miangas), but found the
Dutch flag flying on the territory.
This island was claimed to be part
of the Dutch East Indies which was
the forerunner of modern day
Indonesia.
In 1928, Netherland and US referred
the question of Soverignity of an
Island to an Arbitrator, Max Huber
Netherlands v. United States of America (The Island of Palmas
Case)
• (1928) 2 RIAA 829
• The dispute concerned the sovereignty over the Island of Palmas, ceded by Spain to the
United States of America by treaty concluded in 1898,  but claimed by the Netherlands
as forming part of its possessions on the basis of having exercised sovereignty there for
more than 200 years.
•  On January 23, 1925, the United States of America and the Netherlands referred their
dispute concerning sovereignty over the Island of Palmas to arbitration by a sole
arbitrator. The sole arbitrator was asked to determine whether the Island of Palmas (or
Miangas) in its entirety formed a part of the territory belonging to the United States of
America or of the territory of the Netherlands.
Summary: Contentions of US
• The United States, as successor to the rights of Spain over the Philippines, bases its title
in the first place on discovery.
• As, according to the same argument, nothing has occurred of a nature, in international
law, to cause the acquired title to disappear, this latter title was intact at the moment
when, Spain ceded the Philippines to the United States. In these circumstances, it is, in
the American view, unnecessary to establish facts showing the actual display of
sovereignty precisely over the Island of Palmas (or Miangas).
• The United States Government finally maintains that Palmas (or Miangas) forms a
geographical part of the Philippine group ; and in virtue of the principle of contiguity
belongs to the Power having the sovereignty over the Philippines.
• At one hand there were territorial claims by Netherland based on Occupation and on the
other hand claimed by US as ceded territory which title can be established by Spanish
discovery.
Summary: Contentions of Netherland
• According to the Netherlands Government, on the other hand, the fact of discovery by
Spain is not proved, nor yet any other form of acquisition, and even if Spain had at any
moment had a title, such title had been lost. The principle of contiguity is contested.
• East India Company, have possessed and exercised rights of sovereignty from 1677, or
probably from a date prior even to 1648, to the present day.
• This sovereignty arose out of conventions entered into with native princes of the Island
of Sangi (the main island of the Talautse (Sangi) Isles), establishing the suzerainty of
the Netherlands over the territories of these princes, including Palmas (or Miangas).
The state of affairs thus set up is claimed to be validated by international treaties.
Sovereignty in its relation to territory
• 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 organisation 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. …………..
Keywords: Superior Title; Display of Sovereignty;
Critical Date; Display of State activities
• If a dispute arises as to the sovereignty over a portion of territory, it is
customary to examine which of the States claiming sovereignty possesses a
title— cession conquest, occupation, etc.—superior to that which the other
State might possibly bring forward against it. However, if the contestation is
based on the fact that the other Party has actually displayed sovereignty, it
cannot be sufficient to establish the title by which territorial sovereignty was
validly acquired at a certain moment; it must also be shown that the territorial
sovereignty has continued to exist and did exist at the moment which for the
decision of the dispute must be considered as critical. This demonstration
consists in the actual display of State activities, such as belongs only to the
territorial sovereign.
• It seems therefore natural that an element which is essential for the constitution
of sovereignty should not be lacking in its continuation. So true is this, that
practice, as well as doctrine, recognizes—though under different legal
formulae and with certain differences as to the conditions required—that the
continuous and peaceful display of territorial sovereignty (peaceful in relation
to other States) is as good as a title. The growing insistence with which
international law, ever since the middle of the 18th century, has demanded that
the occupation shall be effective would be inconceivable, if effectiveness were
required only for the act of acquisition and not equally for the maintenance of
the right……………….
• Territorial sovereignty, as has already been said, involves the exclusive right to
display the activities of a State. This right has as corollary a duty: the
obligation to protect within the territory the rights of other States, in particular
their right to integrity and inviolability in peace and in war, together with the
rights which each State may claim for its nationals in foreign territory. Without
manifesting its territorial sovereignty in a manner corresponding to
circumstances, the State cannot fulfil this duty……………
• ……………. The principle that continuous and peaceful display of the
functions of State within a given region is a constituent element of territorial
sovereignty
Keyword: nemo dat quod non habet (no donor can give a
greater interest than he or she already has)
• 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 indicated in Article III of the said Treaty and therefore also those concerning the
Island of Palmas (or Miangas). It is evident that Spain could not transfer more rights
than she herself possessed.
• As pointed out above, the United States bases its claim, as successor of Spain, in the
first place on discovery.
• For these reasons, discovery alone, without any subsequent act, cannot at the present
time suffice to prove sovereignty over the Island of Palmas (or Miangas)
Keyword: Principle of Contiguity
• Although States have in certain circumstances maintained that islands relatively close to
their shores belonged to them in virtue of their geographical situation, it is impossible
to show the existence of a rule of positive international law to the effect that islands
situated outside territorial waters should belong to a State from the mere fact that its
territory forms the terra firma (nearest continent or island of considerable size). Not
only would it seem that there are no precedents sufficiently frequent and sufficiently
precise in their bearing to establish such a rule of international law, but the alleged
principle itself is by its very nature so uncertain and contested that even Governments
of the same State have on different occasions maintained contradictory opinions as to
its soundness.
• …………….. Nor is this principle of contiguity admissible as a legal method
of deciding questions of territorial sovereignty; for it is wholly lacking in precision and
would in its application lead to arbitrary results.
• It is admitted by both sides that international law underwent profound modifications
between the end of the Middle-Ages and the end of the 19 century, as regards the rights
of discovery and acquisition of uninhabited regions or regions inhabited by savages or
semi-civilised peoples. Both Parties are also agreed that 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. The effect of
discovery by Spain is therefore to be determined by the rules of international law in
force in the first half of the 16th century—or (to take the earliest date) in the first
quarter of it, i.e. at the time when the Portuguese or Spaniards made their appearance in
the Sea of Celebes.
Keyword: Intertemporal law
• As regards the question which of different legal systems prevailing at
successive periods is to be applied in a particular case (the so-called
intertemporal law), 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.
• If on the other hand the view is adopted that discovery does not create a definitive title
of sovereignty, but only an "inchoate" title, such a title exists, it is true, without external
manifestation. However, according to the view that has prevailed at any rate since the
19th century, an inchoate title of discovery must be completed within a reasonable
period by the effective occupation of the region claimed to be discovered.
• This same conclusion must impose itself with still greater force if there be taken into
consideration—as the Arbitrator considers should be done—all the evidence which
tends to show that there were unchallenged acts of peaceful display of Netherlands
sovereignty in the period from 1700 to 1906, and which—as has been stated above—
may be regarded as sufficiently proving the existence of Netherlands sovereignty
• For these reasons the Arbitrator, in conformity with Article I of the Special
Agreement of January 23rd; [925, decides that: The Island of.Palmas (or
Miangas) forms in its entirety a part of Netherlands territory.
• In summary, in respect of the Island of Palmas, Arbitrator Huber based his
decision on:
• effective occupation;
• critical date; (the date at which the right of the parties get crystallized and it
does not affect their legal position; whether Netherland acquired better title
than Spain till 1898? Critical date 1898)
• intertemporal laws. (one must access the facts in light of international law at a
relevant time, not the law of time when issue falls decided: Whether spain’s
discovery in 16th century was sufficient to give good title at that time)
• What constitutes ‘effectiveness’ is fluid and varies from circumstance to
circumstance, but it seems that the size and nature of the territory is a crucial
factor.
Clipperton Island Arbitration (France v
Mexico), 2 RIAA 1105 (1932)
• Clipperton Island, apparently uninhabitable, is a low coral reef, approximately two and
a third statute miles in diameter, and is situated six hundred and seventy miles
southwest from the Mexican coast, in the Pacific Ocean, about as far from Panama as
Washington is.
• Although discovered by Capt. Clipperton, an Englishman, in 1705, it was, apparently,
never claimed by the British Government. It was rediscovered by a French captain in
1709 but France made no formal claim to sovereignty until 1858.
• On November 17, 1858, LieutenantVictor Le Coat de Kerweguen, commissioner of the
French Government, while cruising about half a mile from Clipperton, drew up on
board the merchantman L'AMIRAL , he proclaimed and declared that the sovereignty
over the said island belonged from that date forever to H. M. the Emperor Napoleon III
and his heirs and successors.
• Lieutenant De Kerweguen gave official notice of the fulfillment of his mission to the
French consulate at Honolulu, the latter making a similar communication to the
Hawaiian Government; furthermore, at the instance of the said consulate, the
declaration whereby the French sovereignty over Clipperton had already been
proclaimed was published in English in the Honolulu newspaper "The Polynesian“ of
December 8.
• Thereafter and up to the end of 1887 there is no positive and ostensible act of
sovereignty on the part of either France or other Powers
• The island remained without population, - at least without any stable population and no
administration was organized thereon;
• Toward the end of 1897, to be exact, on November 12 of that year, France discovered,
through the Commander of the Naval Division of the Pacific (who had been entrusted
with making an inspection), that there were three persons on the island engaged in
collecting guano on account of the "Oceanic Phosphate Company“ of San Francisco
and that they had hoisted the American flag upon the appearance of the French ship.
The United States Government was asked for explanations and answered that it had not
granted any concession to the aforesaid Company and did not intend to claim any right
of sovereignty over Clipperton (January 28, 1898).
• About one month after the act of vigilance performed by the French Navy and while the
diplomatic action with the United States was under way, Mexico, which was unaware of
the occupation claimed by France and which supposed that Clipperton had been her
territory for some time, sent her gunboat 'La Democrata" to the spot, having been induced
to do this by the report (which afterwards proved to be incorrect) that England had designs
upon the island. The detachment of officers and sailors which landed from the said ship on
December 13, 1897, found the three persons who were residing there at the previous
arrival of the French ship; it compelled them to haul down the American flag and hoist the
Mexican flag instead; while of the three aforesaid individuals two consented to leave the
island and the third declared his desire-to remain and in fact did remain there, it is not
known how long. After which the "Democrata" left, on December 15.
• On January 8 France, having learned of the Mexican expedition, reminded that Power of
her rights to Clipperton. Hence arose a brief diplomatic discussion which lasted until, by
the convention of March 2, 1909, the two Governments agreed to refer to arbitration for the
settlement of the controversy regarding sovereignty over the island.
• the proof of a "historic right" of Mexico is not supported by any manifestation of her
sovereignty over the island, which sovereignty was never exercised up to the
expedition of 1897
• It must consequently be admitted that when France proclaimed her right of sovereignty
over Clipperton in November, 1858, the legal status of the island was that of a
territorium nullius and therefore open to occupation.
• Thus the next question arises, whether France proceeded to make an effect ive
occupation, fulfilling the conditions required by international law for the validity of
such mode of territorial acquisition. In point of fact Mexico, in main contention which
has been examined, alleges the invalidity of the French occupation and consequently
her own right to occupy the island, which in 1897 should have still been considered as
nullius.
• In connection with this question we must first of all consider that the document in which
France clearly and precisely stated in 1858 her wish to consider the island as her territory.
• There is no doubt that, according to a custom of old standing which has the force of a rule
of law, not only the animus occupandi but also the material and not fictitious taking of
possession is a necessary factor in occupation. Taking possession consists in the act or
series of acts whereby the occupying nation reduces the territory to its domination and
takes steps to enforce its exclusive authority there. As a rule and in ordinary cases this
does not take place until it establishes on the territory itself an organization capable of
causing its rights to be respected. However, this is really only a means of proceeding to
take possession and consequently is not identical with it. There may be cases in which it is
unnecessary to resort to such means. Thus if a territory, because of the fact that it is
entirely uninhabited, is at the full and undisputed disposal of the occupying State from the
moment the latter makes its appearance thereon, the taking of possession is to be
considered as having been accomplished from that moment and consequently the
occupation remains perfected
• From these premises it follows that Clipperton Island was legitimately acquired by
France on November 17, 1858. And there is no reason for supposing that France has
since lost her right by derelictio since she has never had the animus of abandoning the
island and the fact that she has not exercised her authority in a positive way does not
imply loss of an acquisition already perfected in a definitive fashion.
Norway v. Denmark (1933) PCIJ SER. A/B, No. 53 (The Legal
Status of
Eastern Greenland Case)
• In 1931, Norway proclaimed that it was ‘taking possession’ of Eastern Greenland,
forming part of the Greenland Island.
• Denmark, which had colonies in other parts of the island, requested the Permanent
Court of International Justice (PCIJ) to declare the Norwegian Declaration, which
purported to occupy the whole of Greenland, invalid.
• Denmark had argued that its title over the disputed territory was ‘founded on the
peaceful and continuous display of state authority over the Island’ (at 45).
• 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: the intention and will to act as sovereign, and some
actual exercise or display of such authority......
• the Court found that Denmark fulfilled these criteria through making laws to regulate
such activities as fishing and hunting, and also giving access to the island to British and
French nationals
• Hence, judgment was given for Denmark.
Sovereignty over Pulau Ligitan and Pulau
Sipadan (Indonesia/Malaysia):
• The status of Pulau Ligitan and Pulau
Sipadan had become an issue in 1969 when
Indonesia disputed Malaysia’s sovereignty
over the two islands during negotiations on
the delimitation of the continental shelf
boundaries between the two countries.
• Ligitan and Sipadan are two very small
islands located in the Celebes Sea, off the
north-east coast of the island of Borneo.
Indonesia v. Malaysia (2002) ICJ REP 625 (The Pulau Ligitan and
Pulau Sipadan Case)
• On 17.12.02, the ICJ gave judgment in the case concerning Sovereignty over
Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia). In its Judgment, which
is final, without appeal and binding for the Parties, the Court found, by sixteen
votes to one, that "sovereignty over Pulau Ligitan and Pulau Sipadan belongs
to Malaysia".
• Indonesia’s claim to sovereignty over the islands was based primarily on a
conventional title, the 1891 Convention between Great Britain and the
Netherlands. Under the Convention title to those islands vested in The
Netherlands, and now vests in Indonesia".
• The Court then considered the other titles on which Indonesia and Malaysia
claimed to found their sovereignty over the islands. It observed that, while the
Parties both claimed title to the islands and did not consider them as terrae
nullius.
• The Court did not accept Indonesia’s contention that it retained title to the
islands as successor to the Netherlands, which allegedly acquired it through
contracts concluded with the Sultan of Bulungan, the original title-holder. Nor
did the Court accept Malaysia’s contention that it acquired sovereignty over the
islands as part of a series of transfers of the title originally held by the former
sovereign, the Sultan of Sulu, that title having allegedly passed in turn to
Spain, the United States, Great Britain on behalf of the State of North Borneo,
the United Kingdom of Great Britain and Northern Ireland and finally to
Malaysia.
• The Court concluded that neither of the Parties had a treaty-based title to
Ligitan and Sipadan and then considered the question whether Indonesia or
Malaysia could hold title to the disputed islands by virtue of the effectivités
cited by them, determining whether the Parties’ claims to sovereignty were
based on activities evidencing an actual, continued exercise of authority over
the islands, i.e., the intention and will to act as sovereign.
• Indonesia claimed a continuous presence of the Dutch and Indonesian navies in
the vicinity of the islands and that the waters around the islands were
traditionally used by Indonesian fishermen. The Court concluded "it cannot be
deduced that the naval authorities concerned considered Ligitan and Sipadan
and the surrounding waters to be under the sovereignty of the Netherlands or
Indonesia".
• It also considered that "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". The Court therefore rejected Indonesia’s arguments
based on its effectivités.
• The Court then considered the effectivités relied on by Malaysia. Malaysia
cited inter alia measures taken by the North Borneo authorities to regulate and
control the collecting of turtle eggs on Ligitan and Sipadan, an activity of some
economic significance in the area at the time. It relied on the Turtle
Preservation Ordinance of 1917 and maintained that the Ordinance "was
applied until the 1950s at least" in the area of the two disputed islands. It noted
that North Borneo constructed a lighthouse on Sipadan in 1962 and another on
Ligitan in 1963, and that those lighthouses still exist and have been maintained
by Malaysia since independence.
• The Court noted that "the activities relied upon by Malaysia ... 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". The Court stated that "at the time when these activities were carried
out, neither Indonesia nor its predecessor, the Netherlands, ever expressed its
disagreement or protest".
Occupation/Effective Occupation
• This is the original mode of acquiring a territory whereby State acquires a territory
which is Terra Nullius
• States unilaterally acquiring territory rather than being granted the territory by another
State.
• A claim based on occupation must demonstrate,
 That prior to acts of occupation, the territory was terra nullius
 That the occupation was for and on behalf of State rather than individuals
 That there must have been an effective taking of possession
 That there must have been intention to occupy as sovereign
Prescription
• Certain conditions govern the validity of acquisitive prescription—namely:
• (a) possession must be exercised à titre de souverain;
• (b) possession must be ‘peaceful and uninterrupted’; and
• (c) possession must exist for ‘a reasonable length of time’.
Malaysia v. Singapore (2008) ICJ REP 12 (Case
Concerning Sovereignty
over Pedra Branca/Pulau Batu Puteh)
• Dispute concerning territorial sovereignty over three maritime features in the Straits of
Singapore, namely Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge
• Pedra Branca is a granite island, measuring 137 m long, with an average width of 60
m.  It is situated at the eastern entrance of the Straits of Singapore – one of the busiest
maritime passages in the world. It lies approximately 24 nautical miles to the east of
Singapore, 7.7 nautical miles to the south of the Malaysian state of Johor and 7.6
nautical miles to the north of the Indonesian island of Bintan.
• Middle Rocks consists of two clusters of small rocks that are permanently above water,
and is located 0.6 nautical miles to the south of Pedra Branca.
• South Ledge is a low-tide elevation and lies at 2.2 nautical miles to the south-south-
west of Pedra Branca.
• On 21 December 1979, Malaysia published a map entitled “Territorial Waters and Continental
Shelf Boundaries of Malaysia.”  The map depicted the island of Pedra Branca as lying within
Malaysia’s territorial waters.
• By a diplomatic note dated 14 February 1980, Singapore rejected Malaysia’s claim to Pedra
Branca and requested that the 1979 map be corrected
• Malaysia and Singapore attempted in vain to settle the dispute through a series of bilateral
negotiations from 1993-1994.
• During the first round of talks in February 1993, the question of the appurtenance of Middle
Rocks and South Ledge was also raised.
• In view of the lack of progress in the negotiations, the Parties signed a Special Agreement on 6
February 2003 (entered into force on 9 May 2003) and submitted the dispute to the International
Court of Justice (hereafter the ICJ or the Court) on 24 July 2003.   Thus, under Article 2 of the
Special Agreement, the Court was requested to determine whether sovereignty over Pedra
Branca, Middle Rocks and South Ledge belongs to Malaysia or Singapore.
• With regard to the dispute as to sovereignty over Pedra Branca, the Court considered 14
February 1980, the time of Singapore’s protest in response to Malaysia’s publication of
the 1979 map, as the critical date.
• Furthermore, the Court concluded that the dispute as to sovereignty over Middle Rocks
and South Ledge crystallized on 6 February 1993.
Contentions
• Malaysia:
•  Malaysia based its claim for sovereignty over Pedra Branca/Pulau Batu Puteh on
original title of long standing and maintained that no event or action had ever taken
place that had relieved it of its sovereignty over this location.
• Singapore’s construction, operation, and maintenance of the lighthouse had been
undertaken with the permission of the Sultan of Johor, which Malaysia as its successor
continued to grant.
• Pedra Branca/Pulau Batu Puteh, Middle Rocks, and South Ledge, did not constitute
one identifiable group of islands and have always been considered to fall within the
Johor/Malaysian jurisdiction.
• Singapore
• Pedra Branca/Pulau Batu Puteh had been terra nullius so that the construction and
operation of the lighthouse from 1847 to 1851 under the auspices of its predecessor, the
British Crown, constituted the taking of lawful possession of a territory and the
effective and peaceful exercise of State authority.
• Singapore argued that prior to 1847 Pedra Branca had never been the subject of a claim
by any sovereign entity.
• Sovereignty over Middle Rocks and South Ledge was dependent upon the
determination of sovereignty over Pedra Branca/Pulau Batu Puteh because the two
features geographically and morphologically formed a single group of maritime
features. Since they were uninhabited, unoccupied, and never independently
appropriated by Malaysia, they belonged to Singapore by virtue of their position in
Singapore’s territorial waters as generated by Pedra Branca.
ICJ
• a principal issue relates to the question whether the Sultanate of Johor—a predecessor
of Malaysia—had sovereignty over Pedra Branca. 
• ICJ examined three letters, all from 1824, written by the British Resident in Singapore
as well as an article from the Singapore Free Press dated 25 May 1843. In light of these
documents, the Court considered that:

From at least the seventeenth century until early in the nineteenth it was acknowledged that the territorial and

maritime domain of the Kingdom of Johor comprised a considerable portion of the Malaya Peninsula, straddled

the Straits of Singapore and included islands and islets in the area of the Straits. Specifically, this domain

included the area where Pedra Branca/Pulau Batu Puteh is located

• Court concluded that the Sultanate of Johor had original title to Pedra Branca.
• By the 1824 Anglo-Dutch Treaty, the old Sultanate of Johor was
divided into the Sultanate of Johor with Sultan Hussein as its
sovereign and the Sultanate of Riau-Lingga with Sultan Abdul
Rahaman as its sovereign.
•  
• Singapore argued,
• that the 1824 Treaty left the entire Straits open for access; and that since Pedra Branca
had become terra nullius as a result of the disappearance of the “old Sultanate of Johor”
by the division of the Kingdom, there was a legal vacuum with regard to sovereignty
over Pedra Branca, leaving room for the “lawful possession” of the island by the British
during the period of 1847-1851
• ICJ
• Malaysia has established to the satisfaction of the Court that […] when the British
started their preparations for the construction of the lighthouse on Pedra Branca/Pulau
Batu Puteh in 1844, this island was under the sovereignty over the Sultan of Johor.
ICJ

Whether Malaysia has retained sovereignty over Pedra Branca following 1844 or
whether the sovereignty has since passed to Singapore. (Legal status
of Pedra Branca/Pulau Batu Puteh during the construction and commissioning
of the lighthouse)

Title to territory might pass from one sovereign to another on the basis of the parties’
conduct, in particular conduct of the sovereign which amounts to abandonment of
sovereignty. Such conduct must be manifested clearly by relevant facts.
• Malaysia argued,
• that the conduct of the United Kingdom and Singapore related only to the construction
and commissioning of the lighthouse and later operating it with the consent conferred
by the Sultan of Johor and that they were not actions intended to acquire sovereignty
over Pedra Branca.
• Singapore contended,
• that the United Kingdom acquired title to the island in the period of 1847-1851 by
taking lawful possession of the island in connection with building the lighthouse on it.
• ICJ looked into the conduct of the Parties after the construction of the lighthouse
•  Singapore cited several legislative enactments relating to the management of the
Horsburgh Lighthouse but the ICJ disagreed, stating that they were normal acts of a
lighthouse operator and did not manifest sovereignty.
•  The Parties’ exchange of correspondence in 1953 played a significant role in the ICJ
judgment. ICJ concluded that as of 1953 Johor recognized that it didnot possess
sovereignty over Pedra Branca/Pulau Batu Puteh.
• On 12 June 1953, the Colonial Secretary of Singapore sent a letter to the British Adviser
to the Sultan of Johor, writing that:

It is [now] desired to clarify the status of Pedra Branca. I would therefore be most grateful to know whether there is any document showing a lease or

grant of the rock or whether it has been ceded by the Government of the State of Johore or in any other way disposed of.  

In a letter dated 21 September 1953, the Acting State Secretary of Johor replied as
follows:

I have the honour to refer to your letter …dated 12th June 1953, addressed to the British Adviser, Johor, on the question of the status of Pedra Branca

Rock some 40 miles from Singapore and to inform you that the Johor Government does not claim ownership of Pedra Branca. 

• According to the Court, in light of the context of the request by Singapore, it is evident
that the letter addresses the issue of sovereignty over the island. Accordingly, the Court
held that: “Johor’s reply shows that as of 1953 Johor understood that it did not have
sovereignty over Pedra Branca/Pulau Batu Puteh
•  Court examined the various conduct of the Parties after 1953.  The Court ruled that the
following actions of Singapore can be seen as conduct à titre de souverain: 

(i) investigation by Singapore of shipwrecks in the waters around Pedra Branca/Pulau

Batu Puteh, 
(ii) Singapore’s exercise of exclusive control over visits to the island, 
(iii) the installation by Singapore of military communications equipment on the island
in 1977, and 
(iv) proposed reclamation by Singapore to extend the island.
Failure of Malaysia
• (i) the display of the British and Singapore ensigns on Pedra Branca/Pulau Batu Puteh,
(ii) the delimitation of Malaysia’s territorial sea in 1969, 
(iii) the inclusion of Horsburgh lighthouse as a “Singapore” Station in the 1959
Malaysian report and the 1966 joint report and its omission from the 1967 Malaysian
report, and 
(iv) official maps.
•  the Court considered that the relevant facts reflect “a convergent evolution” of the
positions of the Parties concerning title to Pedra Branca. Hence, the Court concluded,
by twelve votes to four that by 1980 sovereignty over Pedra Branca had passed to
Singapore
• the ICJ noted the complete absence of any action by Malaysia or its predecessor on the
disputed island for more than a century. The few official visits which Malaysia made to
the island were subjected to the approval of Singapore. The ICJ therefore concluded
that by 1980, the title to PedraBranca/Pulau Batu Puteh had passed from Malaysia to
Singapore.
•  With respect to the Middle Rocks, the ICJ accepted Malaysia’s argument and evidence
that as successor to the Sultan of Johor, it possessed a long-standing title. The ICJ stated
that none of the facts which enabled the passing of title over Pedra Branca/Pulau Batu
Puteh from Malaysia to Singapore were present in the case of the Middle Rocks.
• Concerning South Ledge, the ICJ held that it is a low tide elevation and that its legal
circumstances were therefore different from those of the Middle Rocks. South Ledge
should be governed under Art. 13 United Nations Convention for the Law of the Sea. 
 Uti possidetis juris
• ‘New States will come to independence with the same boundaries they had when
they were administrative units within the territory or territories of a colonial
power
• In 19th century it was determined that the administrative boundaries of spanish
empire in latin and central America should form the international boundaries of
the newly independent states.
• This policy was adopted in post colonial Africa where colonial frontiers created
new independent states
• Policy was adopted by OAU: Administrative convenience over ethnic and cultural
identity.
• UPP- a customary international law
•  In Latin America, uti possidetis, was qualified as a regional norm for the determination
of boundaries. Through uti possidetis iuris the newly decolonized States felt bound to
adopt as their international boundaries the delimitations—usually administrative but
sometimes international in character—traced or tolerated by the colonial authorities and
existing at the date of independence, thus contributing to the consolidation of the norm.
• ICJ in Frontier dispute case (Burkina Faso v Mali) 1986, UP is general principle
alluding to the intangibility of frontiers from colonization
• UPP is not a preemptory norm. States are free to adopt other principles as the basis of a
settlement
• Frontier Dispute Case (Benin v Niger)
• UPP was determining factor to decide sovereignty
• El Salvador v Honduras : ICJ gave utmost importance to UP
• Where the boundary was clear, effective display of state functions in the disputed area
or economic inequality generated by old boundaries was not sufficient to displace UPP

•
Case Concerning Territorial and Maritime Disputes Between
Nicaragua and Honduras in the Caribbean Sea( Nicaragua v
Honduras) 2007
• ICJ followed ‘effectivites’ approach in Case Concerning Territorial and Maritime
Disputes Between Nicaragua and Honduras in the Caribbean Sea( Nicaragua v
Honduras)
• On 8 October 2007, the International Court of Justice delivered its judgment in the Case
Concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the
Caribbean Sea. The Case involved a dispute between Nicaragua and Honduras over the
delimitation of their maritime boundary, as well as a sovereignty dispute over certain
islands and cays adjacent to their coasts.
• In its Application, Nicaragua asked the Court to “determine the course of the single
maritime boundary between the areas of territorial sea, continental shelf and exclusive
economic zone appertaining respectively to Nicaragua and Honduras, in accordance
with equitable principles and relevant circumstances recognized by general
international law as applicable to such a delimitation of a single maritime boundary.”
• Proceeding to the merits, the Court first considered the various claims to sovereignty
over Bobel Cay, South Cay, Savanna Cay and Port Royal Cay as well as other islands,
rocks, banks and reefs in the disputed maritime area. The Court found that the doctrine
of uti possedetis, although potentially applicable to the dispute, did not afford adequate
assistance in determining sovereignty over the islands. It then considered the doctrine of
effectivités and decided that Honduras had shown a sufficient overall pattern of conduct
to demonstrate its intention to act as sovereign over the islands.
• The court found that Honduran licensing of fishing was an act of governmental
authority. The key issue is whether their actions are attributable to a state and there is an
intention to act as a soverign over the territory
Thalweg?
The Chamizal Arbitration (1911)

1848 and 1858 Treaties between US

and Mexico established Rio Grande
as Boundry river

Before 1864 river changed in course

resulting in exposure of land

In 1864, A big flood.

US: CT by Accretion
Mexico: CT by Avulsion

Mexico” 437 acres

Iloilo Case (1925)
• 1898 Treaty of Paris: Spain Ceded Philippines to US
• On exchange of ratifications, Spain would evacuate Islands
• Spanish troops were compelled by local insurgents to withdraw from town of Iloilo
• A day after US forces entered. However property of British subjects were burnt.
• British American Tribunal hearing the claims: Responsibility of US?
United Kingdom v. France (1953) ICJ REP 47 (The
Minquiers and Ecrehos Case)
• ...the theory of the critical date involves that...whatever was the position at the date
determined to be the critical date, such is still the position now. Whatever were the
rights of the Parties then, those are still the rights of the Parties now. If one of them then
had sovereignty, it has it now, or it is deemed to have it...The whole point, the whole
raison d’être, of the critical date is, in effect, that time is deemed to stop at that date.
Nothing that happens afterwards can operate to change the situation that then existed.
Whatever the situation was, it is deemed in law still to exist; and the rights of the
Parties are governed by it.
• it 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...
• In 1884, Spain colonized Western Sahara (otherwise known as ‘Rio de Oro’, and ‘Sakiet
El Hamra’). This territory was inhabited largely by nomadic Saharan tribes and was rich
in phosphate.
• Western Sahara Advisory Opinion (1975) ICJ REP 12
• Faced with Spain’s recalcitrance, the General Assembly requested an advisory opinion
from the ICJ to determine whether Western Sahara was terra nullius at the time of its
colonization by Spain, and, if this question was answered in the negative, to determine
the relation of Morocco and Mauritania, which had competing claims to the territory.
• In the present instance, the information furnished to the Court shows that at the time of
colonization Western Sahara was inhabited by peoples which, if nomadic, were socially
and politically organized in tribes and under chiefs competent to represent them. It also
shows that, in colonizing Western Sahara, Spain did not proceed on the basis that it was
establishing its sovereignty over terrae nullius. In its Royal Order of 26 December
1884, far from treating the case as one of occupation of terra nullius, Spain proclaimed
that the King was taking the Rio de Oro under his protection on the basis of agreements
which had been entered into with the chiefs of the local tribes: the Order referred
expressly (p. 209) to ‘the documents which the independent tribes of this part of the
coast’ had ‘signed with the representative of the Sociedad Espafiola de Africanistas’,
and announced that the King had confirmed ‘the deeds of adherence’ to Spain.
• Although this was the first instance in which the Court had held that an inhabited
territory was not terra nullius, it must be noted that it was able to rule as such only
because there was evidence that the inhabitants of the Western Sahara, at the time at
which Spain colonized them, were well organized and, as Spain also indicated in the
Order that it concluded with the tribal chief, independent.