The theoretical discussion surrounding the concept of effectiveness and its definition show how effectiveness lies at the core of the existential and foundational questions of law of nations that are apparent if we consider one among the key legal concepts of the law of nations, that of territorial sovereignty, whose understanding is crucial to a correct conceptualization and analysis of unlawful territorial situations. Territorial sovereignty normally denotes a political and legal expression, which designates a relationship of power, supremacy or independence between an actor, the state, and an object, the territory.
The implications of the concept of effectiveness for law of nations issues concerning the question of unlawful territorial situations are going to be considered, namely statehood, territorial sovereignty and military occupation. The qualitative expression of the connection between state and territory, together constitutes what’s called territorial sovereignty. Territory and its normative translation, that’s territorial sovereignty, stay as the basis of up so far international legal order, as Article 2 (1) of the United Nations Charter solemnly declares.
General Characteristics Of Territorial sovereignty
Irrespective of the varied theories on the legal function of territory there’s widespread agreement that consistent with the principle of territorial sovereignty a State exercises full and exclusive authority over its territory. Max Huber, within the Palmas Island Arbitration award, has affirmed this general principle as follows: “Sovereignty within the relations between States signifies independence. Independence in regard to a number of the planet is that the proper to exercise therein, to the exclusivity of the opposite States, the functions of a State”. Consistent with the International Court of Justice between independent States, respect for territorial sovereignty is a crucial foundation of diplomacy.
Territorial sovereignty (or: ‘full and exclusive authority) therefore implies that subject to applicable customary or conventional rules of law of countries, the respective State alone is entitled to exercise jurisdiction, mostly by subjecting the objects and the persons within its territory to domestic legislation and to enforce these rules. Moreover, the State is entitled to manage access to and egress from its territory. The latter right seems to also apply to all or any or any kind of communication. Territorial sovereignty protects a State against any kind of interference by other States. While such interference may imply the use of force, that aspect isn’t addressed here.
State and Territory in International Order
By considering the role of effectiveness in determining legal issues associated with statehood and sovereignty, we will fully appreciate its significance vis-à-vis the thought of positive legality. The question of governmental and territorial competencies doesn’t escape this dualism, and thus it’s fundamental to look at those theories for a fuller understanding of the difficulty concerned. Kelsen begins by defining effectiveness within the former sense. However, so as to avoid a charge of presupposing a sociological axiom to a juristic one, he describes it as a ‘general norm of the international legal order’. At this stage, the author seems to take care that the Grundnorm may be a positive rule that due to its general character finds its foundation within the practice of states.
The State as the Primary and the Original Subject of the International Order
The international order, because the other legal order consists by a plurality of subjects. The latter could even be roughly divided into territorial and non-territorial entities. Among the territorial ones, the State stands out, because the first and original subject of the contemporary international order. The consubstantiality between the law of countries and State is so obvious that it’s often been questioned in doctrine which of the two was the first to look from a chronological point of view.
According to a standard division of your time, with the Peace of Westphalia in 1648, there was the definite completion of a process that had begun four centuries before, to mention the smallest amount. In other words the State, as a territorial entity, emerges as a defined and first subject of the contemporary international order. This horizontal character of the new international order presupposes the centrality of the territory and thus the effective deployment of sovereign powers over it.
The Different Components and thus the Features of the State’s Territory
Traditionally, the state’s territory consists (‘ab inferos et usque ad sidera’) by land territory (mainland) and its subsoil, internal water and their soil and subsoil, and by the subjacent column of air (the aerial or atmospheric space). These spaces constitute the state’s territory properly speaking. It must be distinguished by other spaces on and within which riparian States exercise rights and competencies which, although derived from States’ sovereignty, must not be confused themselves with the latter, thereby preventing the subsumption within the concept of territory just like the ocean bottom and thus the Exclusive Economic Zone (EEZ).
As far because most features of the territory are concerned, it’s generally recognized by the doctrine and consolidated practice that the territory must be (a) Stable, (b) Delimitated, (c) Continuous. The primary characteristic refers to the permanence of the residing population, thus excluding the phenomenon of nomadism. With regard to the opposite, it’s to not be interpreted in a restrictive manner when it’s affirmed that the state’s territory possesses to be clearly delimited. Indeed, there exist certain States whose borders aren’t clearly limited in their entirety and nevertheless, their existence isn’t put into question. At last, the third one refers to the continuity of the State’s territory.
The Legal Relationship between State and Territory: the Theories on Territorial Sovereignty
The two pillars of the contemporary international legal order are the principle of sovereignty and therefore the already examined principle of territoriality. Both are derived from the horizontal structure of the Systeme International d’Unites, which has begun to inherit being during the twelfth century. The dominant paradigm of sovereignty assimilates the latter to the theory of independence. The principle of territoriality presupposes and implies a subjective right the State, that’s to mention the ius excludendi alios: ‘Sovereignty within the relations between States signifies independence. Independence in reference to some of the world is that the right to exercise therein, to the exclusion of the other State, the functions of State’.
Thus, territorial sovereignty is conceived because the States’ faculty to pretend that other States (as well as other international subjects of law) abstain themselves from undertaking the functions related to States’ sovereignty. This judicial situation, or subjective right of exclusion, is opposable erga omnes and its essential requirement is predicated on the effectiveness of the sovereignty that a State exercises in its own territory and within its boundaries. Territorial sovereignty is thus the link between the State and its own territory and this is often precisely thanks to the horizontal structure of the fashionable international legal order.
The link between sovereign and territory – meaning the territorial sovereignty
At the start of 1970, the International Court of Justice, upon the overall Assembly request, rendered an Advisory Opinion on the legal situation within Western Sahara (former Spanish colony). In that occasion, the Court couldn’t use an equivalent legal construction adopted within the Palmas’ Island Case so as to completely understand things at hand. This was because things concerned a case where the territory wasn’t only undefined but it varied consistently with the wander of nomad population residing thereon. The latter element, though, prevented a legal crystallization of the territory and thus a definition of territorial sovereignty.
It was displaced in that case by the personal relationship (‘lien d’allégeance personnel’) between the sovereign and the abovementioned populations. Consequently, the sovereign exercised only one of the two competencies composing the notion of sovereignty, namely the ratione personae one, whereas the territorial competence was absent precisely because of lack of territory. From the foregoing, it seems that the concept of territorial sovereignty adequately refers only to an order of an exclusive territorial character, as it is the case of the international one.
Origin and Extinction of Territorial Titles
As far because the former care, the important right of a State over a territory constitutes also a “new” subjective right, which didn’t exist previously. Accordingly, during this case, the mode of acquisition is totally independent from any relationship with another subject of law of nations, namely a State. Situations falling within this first category are the particular occupation of a terra nullius including animus possidendi (that is, with the intent to transfer State sovereignty), or “prescription” (which nonetheless may imply that the territory is under another State sovereignty). The terminology from private law is beneficial to stress that the 2 ‘original’ modes of building a territorial title are neither supported cession nor conquest.
Nevertheless, according to the dominant doctrine (section 2.4 supra) the legitimacy of a prescription under international law is controversial, for it would lack the constitutive elements of the corresponding institution under private law. Even admitting the existence of such means of acquisition of territory under international law, it is still contested whether it belongs to the “original” or “derived” mode of acquisition. With regard to the latter mode of acquisition (derived), it has to be meant as a sort of extension of sovereignty through a previous legal relation that may take the form of an international treaty or of a chain of unilateral legal acts and/or State’s behaviors conveying the legal title. Within this second category, the common feature also because the postulate for the transfer of sovereignty is to be found within the professional relationship between the acquiring State and the one which cedes the territory.
Such professional relation could also be represented by juristic act (treaty-based or unilateral) or by a “composite legal act”, that’s to mention, an aggregation of legal facts and acts (even incomplete) which will create a legal title over a territory. Finally, a 3rd mode of building a legal title over a territory, aside from the “original” and therefore the “derived”, has got to be discussed: the so-called ope legis. In other words, all those natural changes which are so deep and drastic on have legal effects and consequences under law of nations. In this case there’s neither the element typical of the “original” mode of acquisition (the animus possidendi) nor does it depend upon an agreement (legal relation) between two States that we find in the “derived” approach.
1. Wolff Heintschel von Heinegg, Legal Implications of Territorial Sovereignty – https://securitypolicylaw.syr.edu/wp-content/uploads/2015/06/Heinegg_Sovereignty_In_Cyberspace.pdf
2. Theories on Territorial Sovereignty: A Reappraisal, Giovanni Distefano, Université de Neuchâtel, May 2009
3. Unlawful Territorial Situations in International Law chapter 3) Statehood and Territorial Sovereignty, Enrico Milano,
This article has been written by Nijin Raj K Jose, 2nd Year BBA.LLB Student at Christ (Deemed to be ) University, Bangalore.