Module IV: State Territory

 Modes of acquiring territory under international law

 Related legal terminology used in international law
- Occupation
- Prescription
- Cession
- Accretion
 Principle of effective occupation
 Critical date theory and inter-temporal law
 Principle of Uti Possedities

Introduction:
 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.
 In international law, there lies close connection between the concepts of State,
Sovereignty, Territory and Jurisdiction. Among these, territory is central concern to
international law.
 A State must possess territory. 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 are 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.
o Occupation,
o prescription,
o cession, and
o 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

Occupation
 A territory should be terra nullius i.e., no man’s land.
 There should be an occupation.
 This occupation should be effective.
 The ascertainment of evidences till critical date.

What is a critical date? A date where the rights between the parties crystalize. For example,
in Island of Palmas case, the Treaty of Paris was considered as critical date.

Principle of Contiguity
Under this doctrine, the effective occupation of part of a region or territory gave title to the
whole of the unoccupied region or territory proximate enough to be considered as a single
geographic unit with the occupied portion

Doctrine of Inter-Temporal Law:

Netherlands v United States of America, Island of Palmas Case

BACKGROUND: 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. In 1928, Netherland
and US referred the question of Sovereignty of an Island.

Dispute:- 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.

USA Argument: First, the island was discovered by Spain and when they had ceded this
territory, the rights that Spain possessed over the territory transferred to USA. 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. Second, there is a principle
of contiguity i.e., certain pieces of land should be considered as parts of mainland itself. The
United States Government 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.

Netherland Argument: First, Spain has not acquired the title through discover, as they did
not discover the island. Even if they have discovered, it was Dutch which were state
functions in Island of Palmas, therefore sovereignty lies with the Dutch. Third, the principle
of contiguity is not a Customary International Law. 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. The state of affairs set up is claimed to be validated by international treaties.

Max Huber, the arbitrator in this case provides the concept of what state sovereignty is in
international law. He said “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”.

As per Max Huber, what is important to determine is the “CRITICAL DATE” and who was
EFFECTIVELY OCCUPYING the disputed territory i.e., acquisition through effective
occupation. However, one needs to be effective sovereign. The evidence of this effective
occupation may take following forms: legislative, administrative and judicial functions.

The critical date isn’t the date when dispute arose but the date when the rights between the
parties crystallized. The critical date here become the date when Spain and USA entered into
the Treaty of Paris. It is an important factors from an evidentiary point of view, any function
post the critical date doesn’t matter. As per Max Huber, occupation merely gives a State an
inchoate right over a territory which is crystallized by an effective occupation.

It needs to be determined which state has superior title, it must also be shown through actual
display of state activities that territorial sovereignty exists in continuation.

Netherlands proved to court that they were effective executing functions in Island of Palmas,
it was in effective occupation of the Island. Therefore, the decision came in favour of the
Dutch. What is important to determine is what is effective?

Max Huber stated that the principle of contiguity isn’t true. 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).

Max Huber doctrine for three reason:

1. effective occupation (peaceful enjoyment of state in that territory),

2. court need to find something called the critical date,
3. whenever we discuss these disputes inter-temporal law is to be taken into account.

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 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.

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)

We will refer to Cripperton Award and Greenland Dispute and a case decided by ICJ in 2002
between Malaysia and Indonesia. Why 2002 case is important, in this case both states weren’t
able to prove that they had the title by terra nullius. So the court relied on the principle of
effectivities.

Clipperton Island Arbitration (France v. Mexico)

Background: Clipperton Island, is a low coral reef and uninhabitable island.

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 effective 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.

Issue: Whether the territory was terra nullius? Whether there was an effective occupation by
France?

Award: 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 (Animus occupandi is a Latin term used in
international law to describe the intention to occupy or claim territory that is not already
occupied or claimed by another state. It is an essential element of the concept of terra nullius,
which refers to territory that is not subject to the sovereignty of any state.) but also the
material and not fictitious taking of possession is a necessary factor in occupation. Not
just act of taking matter, what matters is intention of taking it as well.

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 dereliction 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 (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, 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
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.

(Indonesia/Malaysia) Sovereignty over Palau Ligitan and Palau Sipadan

This case tells us what acts matter with reference discharge of functions?

Indonesia disputed Malaysia’s sovereignty over the two islands during negotiations on the
delimitation of the continental shelf boundaries between the two countries.

Decisions: On 17.12.02, 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".

It observed that, while the Parties both claimed title to the islands and did not consider them
as terrae nullius.

Activities of private parties cannot be taken as effectivities rather activities of public

authorities.

The court examined contention of both the parties, then considered the question whether
Indonesia or Malaysia could hold title to the disputed islands by virtue of the effectivités
cited by them.

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".

What does peaceful enjoyment mean?

Prescription
 possession must be exercised à titre de souverain; ("in the capacity of a sovereign."
This term is often used to describe actions or decisions made by a head of state or
government in their official capacity as the ruler of a sovereign state.)
 possession must be ‘peaceful and uninterrupted’; and
 possession must exist for ‘a reasonable length of time’

Malaysia v Singapore
Principle of Uti Possidetis Juris (As you possess, So shall you possess)

The influence of the principle of territorial integrity may be seen in the Latin American idea of
uti possidetis, whereby the administrative divisions of the Spanish empire in South America
were deemed to constitute the boundaries for the newly independent successor states, thus
theoretically excluding any gaps in sovereignty which might precipitate hostilities and
encourage foreign intervention. It is more accurately reflected in the practice of African states,
explicitly stated in a resolution of the Organisation of African Unity in 1964, which declared
that colonial frontiers existing as at the date of independence constituted a tangible reality and
that all member states pledged themselves to respect such borders

The principle is a customary international law. We saw this principle in Latin America. The
Spanish empire in Latin America had different administrative units. On independence, those
administrative lines of Spanish empire became international boundaries. While as, in case of
Africa it was different. The boundaries between different colonial boundaries that the
international boundary was setup. Earlier it was considered as a regional customary law but
now it is a customary international law. Today, this principle is accepted for non-decolonized
entities as well. For example, in case Yugoslavia. However, it is not a peremptory norm of
international law. That is, states can agree to change the boundaries through mutual agreement.
Therefore, India and Pakistan can come to form the Akahnd Bharat. We will look into the
informal (conduct of state) and formal acts (legislations etc.) of the colonial states to determine
the line which will be drawn in accordance with Uti Possidetis Juris.
Basically, 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.

Application of uti possidetis iuris to be considered is the ‘critical date’ (photograph of territory
at the critical date). The issue of the critical date is intertwined with that of the elements for
applying uti possidetis

Frontier Dispute Case (Burkina Faso/Republic of Mali)

This case explains how Uti Possidetis interacts with principle of effectivites.

This para explains how Uti Possidetis interacts with Effectivities.

Where the act corresponds exactly to law, the only role of effectivités is to confirm the
exercise of the right derived from a legal title.

Where the territory which is the subject of the dispute is effectively administered by a State
other than the one possessing the legal title, preference should be given to the holder of the
title. In the event that the effectivité does not co-exist with any legal title, it must invariably
be taken into consideration.

The legal title has primary relevance in the application of uti possidetis, although effectivités
become decisive if legal titles are not available or their interpretation is difficult.

1. Where the act concerned corresponded to the title comprised in the uti possidetis juris
then the effectivities simply conferred the exercise of right derived from a legal title
2. Where there is clear legal title, then Effectivities principle is NOT to be applied and
territory will be determined on basis of Uti Possidetis, the holder of the legal title
should be given preference
3. When there is NO clear legal title, then Effectivities play an essential role in showing
how title is interpreted in practice.

Nicaragua v. Honduras (2007)

The Post Indpeende acts were important to consider where the Uti Possidetis line was.

Nicaragua v. Columbia
 It has thus been established that for many decades Colombia continuously and consistently
acted à titre de souverain in respect of the maritime features in dispute. This exercise of
sovereign authority was public and there is no evidence that it met with any protest from
Nicaragua prior to the critical date.

Moreover, the evidence of Colombia’s acts of administration with respect to the islands is in
contrast to the absence of any evidence of acts à titre de souverain on the part of Nicaragua.
The Court concludes that the facts reviewed above provide very strong support for
Colombia’s claim of sovereignty over the maritime features in dispute

Frontier Dispute (Benin/Niger)

El Salvador v. Honduras

Territorial Dispute case (Libyan Arab Jamahiriya/Chad)

Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria:
Equatorial Guinea Intervening)

SIR CREEK

India and Pakistan had dispute on Rann of Kutch. The argument was made on Uti Possidetis.
However, the tribunal did NOT rely on this principle.

Accretion and Avulsion

This describes the geographical process by which new land is formed and becomes attached to
existing land.

 AVULSION is sudden/violent change in the geographical features.

 ACCRETION is gradual change in the geographical features.

If non-navigable river, middle line becomes boundary.

If navigable river, THALWEG becomes the boundary

 Chamizal Arbitration (USA v. Mexico)

In the Chamizal arbitration between the United States and Mexico, the Rio Grande River
forming the border between the parties changed course and the United States claimed the
ground between the old and the new river beds partly on the basis of peaceful and
uninterrupted possession. This claim was dismissed in view of the constant protests by
Mexico and in the light of a Convention signed by both parties that there existed a dispute
as to the boundary which had to be resolved. The fact that Mexico did not go to war over the
issue was not of itself sufficient to make the possession of the tract of land by the United
States peaceful.

Thus, acquiescence in the case of prescription, whether express or implied from all the
relevant circumstances, is essential

Cession
This involves the peaceful transfer of territory from one sovereign to another. Cession has the
effect of replacing one sovereign by another over a particular piece of territory, so the acquiring
state cannot possess more rights over the land than its predecessor had. Although instances of
cession usually occur in an agreement following the conclusion of hostilities, it can be
accomplished in other circumstances, such as the purchase of Alaska by the United States in
1867 from Russia or the sale by Denmark of territories in the West Indies in 1916 to the United
States. It may also appear in exchanges of territories or pure gifts of territory.

Common Heritage of Mankind

The proclamation of certain areas as the common heritage of mankind has raised the question
as to whether a new form of territorial regime has been, or is, in process of being created. In
1970, the UN General Assembly adopted a Declaration of Principles Governing the Seabed
and Ocean Floor in which it was noted that the area in question and its resources were the
common heritage of mankind. This was reiterated in articles 136 and 137 of the 1982
Convention on the Law of the Sea, in which it was provided that no sovereign or other rights
would be recognised with regard to the area (except in the case of minerals recovered in
accordance with the Convention) and that exploitation could only take place in accordance
with the rules and structures established by the Convention. Article 11 of the 1979 Moon Treaty
emphasises that the moon and its natural resources are the common heritage of mankind, and
thus incapable of national appropriation and subject to a particular regime of exploitation. As
is noted in the next section, attempts were being made to establish a common heritage regime
over the Antarctic. There are certain common characteristics relating to the concept. Like res
communis, the areas in question are incapable of national appropriation. Sovereignty is not
an applicable principle and the areas in question would not be ‘owned’, nor would any
jurisdictional rights exist outside the framework of the appropriate common heritage regime
institutional arrangements. However, while a res communis regime permits freedom of access,
exploration and exploitation, a common heritage regime as envisaged in the examples noted
above would strictly regulate exploration and exploitation, would establish management
mechanisms and would employ the criterion of equity in distributing the benefits of such
activity. It is too early to predict the success or failure of this concept. The 1982 Law of the Sea
Convention entered into force in 1994, while the Moon Treaty has the bare minimum number
of ratifications and its exploitation provisions are not yet operative. As a legal concept within
the framework of the specific treaties concerned, it provides an interesting contrast to
traditional jus communis rules, although the extent of the management structures required to
operate the regime may pose considerable problems.

Antarctic:
- Since its discovery, seven claimant States (Argentina, Australia, Chile, France, New
Zealand, Norway, and the ‘UK’) have claimed territorial sovereignty over parts of
Antarctica, which partly overlap.
- The claimant States found their claims on different legal arguments comprising
occupation, contiguity, sector principle, continuity, discovery and exploration, and
historic rights.

Antarctic Treaty System

- The Antarctic Treaty System (‘ATS’) describes all agreements made by the States
to co-ordinate activities and relations on the Antarctic continent.
- It consists of the Antarctic Treaty + several recommendations adopted by the States
Parties at Antarctic Treaty Consultative Meetings
 Convention for the Conservation of Antarctic Seals (CCAS)
 Convention for the Conservation of Antarctic Marine and Living Resources of
1980 (CCAMLR)
 Convention on the Regulation of Antarctic Mineral Resource Activities
(CRAMRA)
- The ATS is based on four objectives:
  the dedication of Antarctica to peaceful purposes;
 the freedom of scientific investigation;
 the protection of the Antarctic environment;
 and lastly a regulation regarding territorial claims, which should not hinder the
implementation of the other objectives.
- The Antarctic Treaty applies to the area south of 60° S latitude, including all ice
shelves
- The AT does not hinder the application of the international law of the sea. However,
the law of the sea is modified as far as the AT entails rules that limit
- or change rights and duties of the law of the sea
- The Treaty is of unlimited duration and only foresees the option of a review process
after 30 years of operation. This may be requested by any consultative party

Outer-space
- Variety of theories prior to the First world war with regard to the status of airspace
above states and territorial waters
- 1919 Paris Convention for the Regulation of Aerial Navigation - recognized the full
sovereignty of states over airspace above their land and territorial sea
- There is no right of innocent passage through the airspace.
- States have agreed to apply IL principles of res communis to outer space
1962 Declaration of Legal principles governing the
activities of States in the exploration and use of outer
space

1967 Treaty on Principles governing the activities of states

in the Exploration and use of outer space including the
moon and other celestial bodies

1968 Agreement on the Rescue of Astronauts, the return of

astronauts and the return of objects launched into
outer space

1972 Convention on International Liability for damage

caused by space objects
1975 Convention on the registration of objects launched
into outer space

1979 Agreement governing the activities of states on the

moon and other celestial bodies

1993 UNGA adopted principles relevant to the use of

nuclear power sources in outer-space

1996 Declaration on International Cooperation in the

Exploration and use of outer-space

2007 Space debris mitigations guidelines

State Succession:
Meaning:
 State succession can arise from Transfer of territory from one state to another through
cession, annexation of colonial territories, federation, or dissolution. Post succession,
the general principle followed is the principle of continuity, which states that in cases
of state and government succession, the state may retain their legal identity from its
preceding states. Ex- Russia continued its legal identity post USSR.
 In case the succeeding state accedes to all rights and duties of the previous state, it is
known as universal succession. The primary document providing for state succession
is the Vienna Convention on State Succession and Treaty Obligations (1978), which
provides for different territorial rearrangements. There are also draft articles on
nationality in case of state succession, which has not yet been enforced.
 Draft articles and ILC: Art. 14 Of the UN Charter provides the GA with the power to
initiate studies of general principles of international law, and encourage progressive
development of international law and codification of international law. There was a
committee if 17 formed to look into this- they gave a recommendation to the 6th
committee of the GA (legal committee). In 1947 the INGA came out with a resolution
to permanently establish the international law commission.
o ILC- they mainly looked into the codification and progressive development of
international law, and their drafts reflected this.
Law on state succession
 Under art. 2(1)(a) of the succession convention- state succession is deal with. This legal
framework applied only to those successions happening in conformity with
international law.
 1978 convention on State Succession- 20 states signed and 3 states have ratified. It has
been acceded by seven states. 4 states have been registered as successor.
 The 1983 convention on the other hand is signed only by 6 states.
 1999- ILC gave the draft text on nationality of natural persons in relation to succession
of states. This has not yet been adopted by the General Assembly.
Theories on state succession
 Universal succession- The state retains all rights and obligations as the predecessor
state, thereby universally succeeding the old state.
1. Theory developed by Hugo Grotius
 2. Provides that state succession s different from Private Law succession
3. Defect- why are all treaties and obligations being forced upon the new state.
 Non succession theory- This is a positive law principle which advocates the clean slate
doctrine. Provides that under state succession, the will of the state changes- so no more
treaty rights and international obligations to be followed.
Defect- Sometimes it is in the interest of the states to retain rights. Further there is not
enough state practice to show such a law.
 Partial succession- Middle ground
Membership of international organizations
Art. 4 accords with the prevailing view that principles of state succession to treaties have no
application to membership of international organizations. Instead, it depends upon the
particular constitution or the rules of the of the organization.
The UN Charter makes no provision for succession to membership- art. 4(2) simply states that
membership is open to all peace-loving states which accept the obligations under the chapter,
and that such membership must be approved by the General Assembly on the recommendation
of the SC.
Cases:
1. Pakistan’s membership in the UN
Pakistan was thought of as a member of the UN as India was a member before
partition. Challenged by Pakistan officials who said that they are not. Here, it was
considered that while India had a mere frontier change with the partition and hence
need not apply for membership again, Pakistan is a new state altogether, and hence
have to apply for a new membership under Art. 4. (This was done by the UNGA 6th
committee along with the secretariat).
2. USSR Dissolution
Russia wanted to succeed USSRs membership in the UM. This was further approved
by the commonwealth of independent states (consisting of former USSR members).
The sec gen therefore allowed the same. However, even after this, under article 23 of
the UN Charter, the USSR is still mentioned as one of the permeant members.
3. Yugoslavia
They wanted to continue the membership of the Socialist Federal Republic of
Yugoslavia. This was rejected because none of the erstwhile SFRY members
 supported the continuation of Yugoslavia’s membership. They therefore had to apply
for a fresh application under art. 4.
4. Syria
Syria retained membership after the dissolution of the United Arab Republic
(consisting of Syria and Egypt).

Succession of Nationality:
Meaning:
 Nationality is relevant in international law as the international rights and obligations
result from this link between the state and its nationals. The 1930 conventions on certain
questions relating to conflicts of nationality art. 1 states that it is for each State to
determine under its own law who are its nationals. This law shall be recognised by
other States in so far as it is consistent with international conventions, international
custom, and the principles of law generally recognised with regard to nationality.
 Under art. 3 of the same convention, states were given the liberty to determine who its
nationals were through their domestic laws. This law is to be accepted by other states
so far as it is applicable to conventions, customs and principles of law recognized in
relation to nationality.

Limitations to Nationality:
Nationality is a principle that is derived from the principle of state sovereignty; a state may
only regulate acquisition, loss and consequences of its own nationality. This however does not
exclude states from laying down rules for the purpose of deciding quo would constitute a
national of other states. Questions of nationality must be a matter of national jurisdiction, and
is now a principle of customary international law. Limitations to nationality

a. Art. 5(d)(iii) of CERD- upon conferring of nationality there should not be any
distinction as to race, colour, or national or ethnic origin.
b. Art. 5(1) of European Convention- prohibits any discrimination on grounds of sex
and religion.
c. Art. 9(1) CEDAW – obliges state parties to confer equal rights to men and women-
to acquire, change or retain their nationality.
d. Art. 18(1) on Convention on Rights with Disabilities- equal treatment with regard
to nationality and binds the parties to ensure that persons with disabilities have the
 right to acquire and change a nationality and are not deprived of their nationality
arbitrarily or on the basis of disability

Human Right to Nationality

a. UDHR
b. Art. 15: Right to Nationality- Everyone has the right to a nationality.
c. No one shall be arbitrarily deprived of nationality nor denied the right to change his
nationality.
d. Art. 19- American Declaration of the Rights and Duties of Man
e. The right to acquire a nationality is explicitly laid down for children under art. 24(2)
of the ICCPR.
f. Art. 7 of convention on the rights of the child
g. With disabilities in Art. 18(2) Convention on the Rights of Persons with Disabilities.
Look into slides.

Nationality is generally given on three grounds

a. Jus soli- By birth
b. Jus Consanguinis- By descent
c. Naturalisation (staying in a place for a prolonged period of time)

There are two views on the succession of nationality

1. Dominant view- Nationality changes automatically to that of the successor state,
because it is not only the sovereign authority but the duty of the successor state to
confer nationality to the population on the territory concerned.
2. Other view- Nationality should be based on the domestic jurisdiction of the successor
state. The successor state can decide on their own domestic laws on nationality. They
only have to keep in mind their international obligations, such as the CEDAW and the
ICCPR.

Difference between nationality and recognition

1. Nationality- It is a domestic act which has international consequences (The state can
act if their national is harmed in another state)
2. Recognition- It is an international act done bilaterally between the states- based on
this they see if the immunities are to be granted. Here, there is a domestic effect of
international acts.
Nottebohm case-
 In this case, Nottebohm was a German national born in 1991. In 1905 he went to
Guatemala and in 1935 he became a citizen of Liechtenstein. He surpassed the
requirement of 3 years of residence, and got the citizenship
 In 1941, Guatemala being in war with Germany started arresting alien enemies, thereby
arresting Nottebohm, where he was having his fixed residence. Subsequently, he was
deported to the US. Guatemala then brought a legislation to confiscate property of all
alien enemies. When Nottebohm tried to go to Guatemala, he was not accepted, so he
settled in Liechtenstein. Liechtenstein later brough a suit against Guatemala, for
deprivation of property and for arresting its national.
 Q- Whether it is obligatory for Guatemala to consider the nationality conferred
on Liechtenstein through a domestic legislation?
 ICJ- The considered the Liechtenstein law as a law with international effect. They
looked into the concept of nationality, and held that there must be some genuine
connection between individuals and the state, only then can a ‘nationality link’ be
established, and such conferring would later be recognized by other states. (The genuine
connection test was a factual inquiry, which required a consideration of multiple factors
such as the period of staying, genuine connections etc)
 The court here concluded that he had no connection with Liechtenstein and was more
linked to Guatemala. (Another fact they considered was that Germany during WW2
had instructed citizens to take citizenship in neutral states to avoid prosecution).

The effective nationality test in international law

 This Nottebohm test has not been reflected under art. 4 of the draft articles on
diplomatic protection. They said that this was a special rule adopted by the ICJ for the
Nottebohm case specifically
 This rule is not a general rule- most of the time exclusively applied in investment
arbitration cases.

Nationality and succession- Draft Articles

 Draft articles were created post the dissolution of the USSR, when Post Soviet states
like Latvia and Estonia started coming up with their own citizenship requirements like
1. People should know the language
2. They must have lived in the territory immediately before the dissolution.
 It is divided into two parts
1. Part 1- General provisions
2. Part 2- Specific provisions for conferring nationality
 Important articles
a. Art. 1- Right to nationality
b. Art. 4- Prevention of statelessness
c. Art. 5- Presumption of nationality (purpose- address the problem of time lag
between the date of succession and adoption of legislation or as the case
maybe- in such cases the people run the risk of being declared stateless-
therefore it is important to consider a principle that on the date of succession
of states, the successor state attributes its nationality to persons who are
habitual residents of the territory affected by such succession.)
 General guidelines
a. Nationality must be granted to only those persons who have a genuine
connection with the state
b. For successor state to confer nationality on inhabitants of a predecessor state-
there must be an appropriate connection between those persons and the territory.
c. Nationality of successor state can be conferred only if they submit voluntarily
to its jurisdiction, by virtue of an explicit declaration or voluntary return to their
land of origin.
d. Right of options must be there- in case post partition/dissolution, the
predecessor state continues to exist, the citizens must be given an opportunity
to choose nationality.
 Specific cases of nationality granted under the convention
a. Transfer of part of territory- Transfer of territory- when one state transfers a part
of territory to another successor state- successor state shall grant nationality to the
habitual residents of such territory- and predecessor state shall withdraw (unless
there is a contrary agreement).
b. Uniting of states- All citizens of a predecessor state will be granted the citizenship
of the successor state.
c. Dissolution of states- When a state dissolves into two or more successor state- each
of these successors shall grant nationality to those have habitual residence or
appropriate connection to the territory.
 d. Separation of part or parts of territory of a state- a successor state, unless
otherwise indicated by the right of option, shall grant its nationality to those that
have their habitual residence or an appropriate connection to its territory.

Treaty obligations and succession

The general rules for these are those of customary international law codified under 1978 Vienna
Convention on Succession of States in respect of treaties. In real practice, the, the methods
commonly professed are

a. Clean slate doctrine- Compete rejection of all obligations.

b. Devolution agreement- new state agrees to assume the rights and obligation of
treaties that the prior administering power concluded for and applied to the territory
of new state. Ex- British dependencies.
c. Temporary application- Treaties valid for temporary period. Ex Nyerere Doctrine
(President Julius Nyerere of Tanganyika).
d. Selective application- pick and choose unilaterally
e. Deferment decision- they don’t declare their position on various treaties.
In case of political treaties, it is not an agreement no more than a treaty of friendship, does not
bind subsequent governments. In case of bilateral treaties, the clean slate doctrine is favoured.

 Important articles
a. Art. 2- Definition of a treaty- It means an international agreement concluded
between states in written form and governed by international law, whether
embodied in a single instrument or two or more related instruments, and whatever
its particular designation.
b. Art. 11- Boundary regimes- Succession doesn’t affect boundary treaties
(Corresponds to Art. 62(2) of the VCLT- which says that fundamental change of
circumstances do not affect boundary treaties).
c. Art. 12- Other territorial regimes- Succession of states does not as such affect
obligation relating to the use of territory, or restrictions upon its use etc; rights
established by a treaty for the benefit of any territory and relating to the use, or
restrictions upon the use, of any territory of a foreign states and considered as
attaching to the territories in question.

Succession under various cases of territorial arrangement in the VCSST

 Ways of Succession:
a. Cession of territory- If one territory is ceded to another state. Their obligations
would be binding on the territory. This is known as the Moving Treaty Frontiers
Principle, as provided under art. 15 of the VCSST.
b. Incorporation and merger (31)- When a larger country takes a smaller country
within its ambit, it is known as incorporation. Where one state voluntarily decides
to be incorporated to another, the former ceases to exist as a subject, while the
territory of the latter extends to that of the incorporated state. The bigger countries
obligations apply on the smaller one and the latter’s obligations extinguish.
The localized treaties however continue.
Merger happens when two states combine- in case of merger, both the country’s
obligations continue om the new state.
c. Separation (Art. 35)- Ne separated territory would not be bound by the
predecessor’s obligations, again except for localized treaties (Ex UK and Scotland
separation)- Scotland won’t be bound by anything except for localized treaties such
as border treaties)
d. New Independent states (defined under art. 2(e))- Provided for under Vienna
Convention on State Succession- this was the case for decolonized countries. Here,
the convention stated that the clean slate doctrine would apply here (art. 16). The
new state is required to choose the treaties which it wants to follow from the
predecessor state by informing the depository (UNTS).
If it is not informed, under art. 102 of the UN Charter, then such a treaty cannot be
enforced at the ICJ.
Other important concepts:
Clean slate doctrine
 The Clean Slate Doctrine is a principle of international law that holds that when a state
succeeds another state, it is not bound by any treaties or obligations that the predecessor
state had with other states, unless the successor state explicitly chooses to adopt them.
 Under this doctrine, the new state is seen as a completely new entity that starts with a
clean slate, with no obligations or responsibilities inherited from the previous state.
This means that the new state is free to establish its own relationships with other states
and international organizations, without being bound by any previous commitments
made by the predecessor state.
 The Clean Slate Doctrine is often applied in situations of state succession, such as when
a colony gains independence or when one country splits into two or more independent
states. However, its application is not automatic and depends on various factors,
including the specific circumstances of the succession and the intentions of the
successor state.

Principle of continuity
 The Principle of Continuity in state succession is another principle of international law
that operates alongside the Clean Slate Doctrine. It holds that when a state succeeds
another state, it assumes all the rights and obligations of the predecessor state, including
its membership in international organizations, ownership of property, and obligations
under treaties.
 Under this principle, the new state is seen as a continuation of the predecessor state,
and it is required to assume all of the legal responsibilities that come with that status.
This means that the new state must respect the same rights and obligations that were
previously in force, and must honor the treaties and agreements that the predecessor
state had entered into.
 The Principle of Continuity is often applied in situations where there is a smooth and
peaceful transition of power, such as when a colony gains independence or when one
country merges with another. However, it may be challenged in situations of contested
succession or when there are conflicting claims to territory or resources.
 Overall, the principles of continuity and clean slate are both important principles of
state succession, and their application depends on the specific circumstances of each
case.
Doctrine of reversion
 The Doctrine of Reversion is a principle of international law that applies to certain types
of territories and assets that were previously under the sovereignty of another state. It
holds that when the sovereignty over such territories or assets is terminated or
transferred, they should revert to their original owner.
 This principle is often applied to territories that were once colonies or territories that
were under the control of a foreign power, but were later granted independence or
returned to their original owner. The doctrine of reversion may also be applied to other
types of assets, such as cultural artifacts or natural resources, which were originally
owned by a state but were subsequently seized or transferred to another state.
 The doctrine of reversion is based on the idea that sovereignty over certain territories
and assets is an inherent right of a state, and that this right cannot be permanently
transferred or extinguished without the consent of the state in question. However, the
application of this doctrine can be complex and may depend on various factors, such as
the nature of the territory or asset in question, the intentions of the original owner, and
the circumstances surrounding the transfer of sovereignty.

Art. 31 of the VCSST- MERGER

 Exceptions to this rule
a. If the state otherwise agrees- these rules won’t apply
b. Treaty obligations can also be avoided if the application of the treaty would go
against the object of the treaty.

How other things would devolve

a. In case of reservations- Unilateral declaration by the state which modifies the effect
of multilateral treaties on their state. Reservations can be objected to by other states.
New state can inform the repository regarding reservations. (Art. 20).
b. For bilateral treaties- The new state can continue or not continue the treaty by
expressly or impliedly (through conduct) accepting or rejecting it. (Art. 24 and 25). If
it is to be followed, it is to be done so from the date of succession unless otherwise
established.
c. HR treaties- The successor state is bound by the obligations of the predecessor state,
even where otherwise no state succession with treaties would take place. This has
however not been followed uniformly across state practices.
d. Public Property- 1983 Convention on the succession of state in respect of property,
archives and Debts. State property under art. 8 of this convention means property, rights
and interests which, at the date of succession of states, were according to the internal
law of the predecessor state, governed by that state.
Public property of preceding state will be followed by the new state. What constitutes
public property will be defined by the international laws of the predecessor state.
Succession shall be based on a lex situs basis.
Under art. 15, if an immovable property is outside the boundaries, then it would be
retained by the predecessor state, unless the parties agree otherwise. Under art. 17,
movable property of the predecessor state connected with the activities in respect of
territory to which succession of states relate to, will pass to the successor state.
However, other properties shall pass on to the successor state in equitable proportion
only.
(Just go through the last slide again).
e. Dependent territory- will continue with the successor state
f. Archives- Except for cultural archives, the archives without compensation would go to
the new state.