NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES

PUBLIC INTERNATIONAL LAW

INTERNAL PROJECT

ACQUISITION OF STATE TERRITORIES

SUBMITTED BY

ELIZABETH JAMES (1492)

3rd SEMESTER, BA LLB (Hons.)

NUALS
 ACQUISITION OF STATE TERRITORIES

INTRODUCTION
The acquisition of territory by a state can be more correctly referred to as acquisition of territorial
sovereignty, by an existing state and member of the international community over another state.
Territory in International laws means any area of the earth’s surface which is subjected of sovereign
rights and interests. It is a definite part of the surface of the earth where the state normally exercises
jurisdiction over persons or things to the exclusion of another state. Territory is one of the constituent
elements of a State under International Laws. No rule is clearer than the precept that no state may
lawfully attempt to exercise its sovereignty within the territory of another. The definition of Statehood
itself has the possession of a more or less defined territory as a necessary element. Thus when
discussing the modes of acquisition of territory under international law, what is really at issue is not
merely territory in the physical sense but State sovereignty in respect of territory. State sovereignty is
inherent in statehood that there should be a core territory that is subject to the effective control of the
authorities of the state. Within the state territory, the state exercises exclusive and supreme authority.
According to the maxim “quidquid est in territorio est etiam de territorio”, all individuals and all
property within the territory of a state are under its dominion and sway, and foreign individuals and
property fall at once under the territorial authority of a state when they cross its frontiers. Article 2.4
of the United Nations Charter requires members to ‘refrain in their international relations from the
threat or use of force against the territorial integrity or political independence of any State’. Hence, we
can see how the need for territory is of prime importance for a State to exist. State boundary forms a
very important part of a nation and disputes relating to boundaries are very common. The correct
interpretation of the instruments by which that boundary was established is looked into to decide the
location of a land boundary under dispute. In other cases, arbitral awards or judicial decisions may be
used to decide in cases, especially where the meaning of a boundary treaty is being questioned. It is to
be kept in mind that one of the primary objects of the tribunals while solving such disputes of boundary
settlements is ‘to achieve stability and finality’.
 MODES OF ACQUISITION OF STATE TERRITORY
At the very outset, it needs to be made clear that the recognition of a new state cannot be considered
as the acquisition of territory. There may also be cases where private individuals or corporations gain
certain rights or even authority over a territory which wasn’t under the territorial supremacy of any
recognized state. Such cases are again not within the scope of “modes” of acquisition of state territory.
The key component of determining which state is the legal sovereign of any disputed territory lies in
analyzing the evidence of possession and control over that territory under the modes of acquisition of
territory under international law. The Five modes of acquisition of territory have been traditionally
identified under international law, mostly derived by analogy from Roman law rules relating to the
acquisition of land by private parties. International law adopts much of Roman property laws in regards
to acquisition of sovereignty due to the underlying European civil law at the time of early discovery
voyages. Since the beginning of the 20th Century, the increasing limits set by international law on the
rights of States to go to war resulted in conquest no longer being a valid mode of acquiring sovereignty
over territory in international law. While the study of the modes of acquisition of territory is
traditionally divided into five categories, it must be noted that in practice, the issue of territorial
sovereignty is complicated and cannot usually aspire to any single mode of acquisition. The five modes
are cession, effective occupation, accretion, conquest or subjugation and prescription. Also these
methods are divided into two categories: original and derivative mode of acquisition. This division is
the basis of whether the title given to the state is derived from a prior owner-state or not.

A. CESSION
Cession is the transfer of territorial sovereignty by one State to another State. The ‘Cession’ of a
territory, means the renunciation made by one State in favor of another of the rights and the title which
the former may have to the territory in question. This is effected by a treaty of cession expressing the
agreement to the transfer. Its basis lies in the intention of the concerned parties to transfer sovereignty
over the territory in question, and it rests on the principle that the right of transferring its territory is a
fundamental attribute of the sovereignty of a State. The cession may comprise a portion of the territory
of the ceding State or the totality of its territory. It is a bilateral mode of acquisition in that it requires
the co-operation of the two States concerned, whereas all the other modes are unilateral. The title it
confers is derivative in the sense that its validity is dependent upon the validity of the title of the ceding
state. For this proposition we need to go no further than the Island of Palmas case, where the US based
its claim partly on the Treaty of Paris of 1898, which transferred to the US all rights of sovereignty
which Spain might have possessed in a certain region said to include the disputed island. In the normal
cession there are two elements, the agreement to cede embodied in the treaty, and the actual handling
over, or tradition, of the territory- though in some cases the cessionary State may already be in
occupation when the treaty is made. The only form in which a cession can occur is an agreement
normally in the form of a treaty between the ceding and the acquiring state; or between several states
including the ceding and cessionary states. A lot of times cession is an outcome of peaceable
negotiation or war, and maybe without compensation although certain duties could be imposed in the
acquiring state. Such cessions are agreed upon by the interested states for different motives and for
different purposes, like a gift or voluntary merger. An example is when Austria, during its war with
Prussia and Italy in 1866, ceded Venice to France as a gift. Later France ceded Venice to Italy. Article
52 of the Vienna Convention on the Law of Treaties says that if the conclusion of a treaty has been
procured by threat or use of force in violation of the principles of International Law embodied in the
Charter of the United Nations, then it is void. Hence, such forceful signing of agreements to cede
territories would be invalid today. We know that the ceded territory is transferred to the new sovereign
with all international obligations. All individuals who are subjects of the ceded state will normally
become ipso facto by the cession subjects of the acquiring state. The hardship involved for the
inhabitants of the territory, who are irrespective of their choice handed over to the new sovereign,
created a movement in favor of the claim that no cession can be valid until the inhabitants of the
territory had by a ‘plebiscite’ given their consent to such cession. In modern law, however, the
plebiscite is seen more as an instrument to comply with the principle of self-determination. There is
certainly authority for holding that no particular form of tradition of the territory is required, and that
the cessionary State is entitled to occupy the territory at any time after the treaty comes into force. A
famous example of cession is the acquisition of Hong Kong by the British from China.

B. OCCUPATION
Occupation is a state’s intentional claim of sovereignty over territory treated by the international
community as terra nullius, or territory that does not belong to any other state. Jennings writes it is
“the appropriation by a state of a territory, which is not at the time subject to the sovereignty of any
other state.” Article 42 of The Hague Regulations of 1907 defines occupation as follows: “Territory
is considered occupied when it is actually placed under the authority of the hostile army. The
occupation extends only to the territory where such authority has been established and can be
exercised.” The only territory which can be the object of occupation is that which doesn’t already
belong to any state, whether it is uninhabited, or inhabited by persons whose community is not
considered to be a state. In another scenario, a territory which belonged to a state but was afterward
abandoned maybe occupied later by another state. A territory, the sovereignty over which is unclear
or disputed cannot become an object of occupation. Acquiring states substantiate their claim by
establishing administration over the territory. Possession and Administration are the two essential
factors required to constitute an effective occupation. For possession, the territory must be taken under
the state’s sway (corpus) and with the intention of acquiring sovereignty over it (animus). Possession
generally involves a settlement and some sort of formal act which announces and shows the intention
of the occupying state. After taking possession, the state has to establish an administrative system
within a reasonable period of time. Administrative function is necessary because only then is the
possessor state exercising sovereignty over the territory. The uncertainty of the extent of occupation,
and the tendency of possessor states to extend their occupation within the territory paved the way for
the concept of ‘spheres of influence’. These spaces were basically a description of the territory
exclusively reserved for occupation by a state which had effectively occupied adjoining territories, by
a treaty. This helped reduce disputes to some extent. As soon as a territory has been occupied by a
state, the acquired title comes within the sphere of international law and no other state can lawfully
acquire it through occupation. The possessor state is thereafter responsible for all events of
international importance that happen on the territory.

C. ACCRETION
Accretion refers to the physical expansion of an existing territory through the geographical process. It
is the name for the increase of land due to some new formations. Such formation may be a modification
of the existing state territory for example, when an island rises within a river (not increasing the
territory, only the land) or when an island emerges in the maritime belt. It is a customary rule of
international law that enlargement of territories by new formations, takes place ipso facto by accretion,
without the state concerned taking any special step for the purpose of extending its sovereignty. Hence,
accretion too is a direct mode of acquisition of territory. New formations through accretion may be
natural or artificial. Artificial formations include man-made embankments, breakwaters, dikes etc.
built along the river or coastline. No state is allowed to alter the natural condition of its own territory
to the disadvantage of the natural environment of the neighboring countries. Natural formations
include alluviuns, deltas, newborn islands, abandoned river beds. Alluvion is an accession of land
washed up on the seashore or river bank by a gradual process of sedimentation or suddenly when a
stream washes one bank and carries it over to the other bank. In such cases, the state gets a claim over
the extra territory it has gained. Abandoned river beds occur when a river suddenly dries up leaving
the bed dry and empty. In such cases, if it was a navigable boundary river, the line continues to run in
the middle of the old thalweg in the abandoned river bed. The natural processes may sometimes create
new islands, which if created in the high seas belong to no one and may be acquired through
occupation. If they arise within the territorial sea, they accrue to the littoral state and the extent of the
maritime belt may now be calculated from the extended seashore. Needless to say, if these islands
arise in rivers, lakes within a state they are accretions to the territory of that state. The Canadian
Supreme court in the case of Clarke v. City of Edmonton1, 1939 while discussing the concept of
Accretion says that “Accretion denotes the increase which land bordering on a river or on the sea
undergoes through the silting up of soil, sand or other substance, or the permanent retrial of the waters.
This increase must be formed by a process so slow and gradual as to be, in a practical sense,
imperceptible, by which is meant that the addition cannot be observed in its actual progress from
moment to moment or from hour to hour, although, after a certain period, it can be observed that there
has been a fresh addition to the shoreline. The increase must also result from the action of the water
in the ordinary course of the operations of nature and not from some unusual or unnatural action by
which a considerable quantity of soil is suddenly swept from the land of one man and deposited on, or
annexed to, the land of another.

D. SUBJUGATION
Subjugation is the acquisition of territory by conquest followed by annexation. This direct mode of
acquisition is often called title by conquest. In those days war wasn’t illegal and so making of war was
recognized as a sovereign right. There is a very fine distinction between cession and subjugation. Like
compulsory cession, conquest followed by annexation would transfer territory by compulsion, but
unlike cession, it involved no agreement between the concerned parties. In most cases, the victors in a

1
[1930] SCR 137
war enforced a treaty of cession. Simple title by subjugation is rare. Article 10 of the League of Nations
Covenant made it unlawful to wage war for the purpose of acquiring territory. The acquisition of
territory through the use of force is also outlawed by the Charter of the United Nations, which obliged
the member States to refrain from the use of force against the territorial integrity or political
independence of any State. This same principle is reaffirmed in the 1970 General Assembly
“Declaration on Principles of International Law Concerning Friendly Relations and Co-operation
among States in Accordance with the Charter of the United Nations”. This Declaration adds that the
territory of a State shall not be the object of acquisition by another State resulting from the threat or
use of force and that no territorial acquisition resulting from such act shall be recognized as legal. It is
to be noticed that conquest alone doesn’t ipso facto make the conquering state the territorial sovereign
of the conquered state. The conqueror has to after firmly establishing the conquest, formally annex the
territory once the war had ended. Although subjugation is an original mode of acquisition, since the
sovereignty of the acquiring state is not derived from that of the state formerly sovereign of the territory,
the new sovereign is nevertheless the successor of the former. Doctrine and practice suggest that the
national status of the subjects of the subjugated state and those domiciled on the annexed territory who
remain on the annexed state become ipso facto subjects of the subjugating state by the act of
subjugation. A more recent example of annexation would be that of Iraq over Kuwait in 1990.

E. PRESCRIPTION
A prescription can be defined as ‘the acquisition of sovereignty over a territory through a continuous
and undisturbed exercise of sovereignty over it during such a period as is necessary to create under the
influence of historical development the general conviction that the present condition of things is in
conformity with the international order.’ There was no rule laid down as regards the length of time or
other circumstances necessary to create such a title by prescription. The conditions differ from case to
case basis. As long as other states keep up protests and claims, the actual exercise of sovereignty isn’t
disturbed, nor is there the general conviction that the present condition of things is in conformity with
international order. After such protests cease, however, there may be a situation arising where it
becomes in conformity with the international order. The question of what time and under what
circumstances such a condition of things arises is one of fact merely. There are innumerable
circumstances at work besides the mere lapse of time to create conviction that in the interest of stability
and order the present owner should be considered the rightful owner of the territory. Also, since a lot
of these factors may be political or historical in nature the length of time may differ considerably in
different cases. Whereas many authors like Oppenheim and Schwarzenegger consider these to be two
different subjects many modern authors like to divide Prescription into two types: either ‘extinctive’ or
‘acquisitive’. The prescription used in the sense of extinctive prescription can be similar to the “law of
limitation”. Suppose country A has an International claim against country B but fails to bring it before
any international tribunal within a reasonable period of time without any obstruction from country B
then, it may be rejected by the tribunal later. Suppose, a state had under mala fide intention held an
island by occupation knowing that it belonged to another country. If it succeeds in keeping its
possession for so long that the former possessor has given up on protesting and the possession remains
undisturbed for long then it may be said that the condition has become in conformity with the
international order and the title ay rightfully be passed on to the new possessor state by prescription.
Similarly, if a map has an incorrectly drawn borderline which allots to one of the states a certain tract
of territory and is for a long period of time considered to be correct; the conviction will prevail that the
present condition is in conformity with the international order. Even if afterward the wronged state
protests and demands the line to be redrawn the limitation principle works and the claim will be
rejected. ‘Acquisitive Prescription’ deals with cases where the original title is invalid or where the
original title of the territory is impossible to prove. The doctrine says that the party who succeeds in
establishing its title gets the substantive rights while those of the former state are abolished.

LOSS OF STATE TERRITORY

It is also important while discussing the different methods of acquisition of territory, to go through the
different modes of loss of state territory. These are cession, dereliction, operation of nature,
subjugation, prescription and there is a sixth mode that is Revolt. Loss of territory by subjugation,
cession, and prescription is pretty straightforward and requires no further explanation. It’s simply the
corresponding loss of territory due to the gain of that territory by another state. Revolt, on the other
hand, has been accepted as a mode of losing territory to which there is no corresponding mode of
acquisition. There is no hard and fast rule regarding the time when a state which has broken off from
another can be established permanently as another state. A revolt, however, seems to be more of a
political issue than a legal mode of loss of territorial sovereignty. Dereliction as a mode of losing
territory corresponds to occupation. Dereliction frees a territory from the sovereignty of the present
state possessor. When the owner state completely abandons a territory with the intention of
withdrawing from it permanently and relinquishing sovereignty over it dereliction is affected. Actual
abandonment alone cannot amount to dereliction as it is assumed that the owner will and can retake
possession. Hence, just like occupation there has to be an abandonment of territory (corpus) and an
intention (animus) to withdraw too. We shall also discuss the loss of territory due to natural causes, as
an operation of nature. Just like accretion adds to state territory, the disappearance of land due to
natural factors is ipso facto a loss of state territory. Thus, if an island submerged or a river changes its
course so as to eat into part of the territory of the state there is a loss of territory. This topic is widely
gaining importance nowadays in the global scenario because the rapid changes in the environment
have caused a substantive rise in sea level.
 CASE LAWS RELATING TO ACQUISITION OF STATE TERRITORIES

1. CLIPPER TON ISLAND CASE (FRANCE v. MEXICO)2

FACTS: The decision rendered January 28, 1931, by his Majesty Victor Emmanuel III, in the
Clipperton Island case between France and Mexico, is a fresh reminder that the development of
important principles of law or policy is frequently advanced in the settlement of relatively unimportant
controversies. France claimed to have occupied an island but Mexico also claimed that Spain
discovered it and that it was the successor. Clipperton Island is situated in the Pacific Ocean. A French
lieutenant on board a commercial vessel cruising past the uninhabited island declared it to be French
territory. The lieutenant notified the French consulate, which informed the Government of Hawaii and
published the declaration of French sovereignty in the local journal. Very little was then done in
relation to the island by the French authorities. Many years later, Mexican gun-boat landed and forced
the three inhabitants to raise the Mexican flag, claiming that the island bad been discovered by Spain,
to which Mexico was the successor State.

HELD: For occupation you also need to possess the land which France did. The Arbitrator held that
the discovery by Spain had not been proved, and that France had not abandoned her claim and so had
title to the Island. Mere discovery gave a State an 'inchoate title': an option to occupy the territory
within a reasonable time, during which time other States were not allowed to occupy the territory. To
have effective occupation, there should be: a) intention and will to act as sovereign b) adequate
exercise or display of sovereignty. The award rejects the Mexican claim to priority of discovery and
occupation on the ground that prior Spanish discovery was not proved, and further that, in any case,
there was no proof of an effective occupation by Mexico before 1858. It follows that Clipperton Island
was terra nullius in 1858. The Court was able to find that French satisfied the requirements of
occupation under the international law in 1858.

2
(1932) 26 AJIL 390
 2. ISLAND OF PALMAS CASE (U. S. A v. NETHERLAND)3

FACTS: The Island of Palmas Case was a territorial dispute over the Island of Palmas (or Miangas)
between the Netherlands and the United States which was heard by the Permanent Court of Arbitration.
In 1898, Spain ceded the Philippines to the United States in the Treaty of Paris (1898) and Palmas is
located within the boundaries of that cession. In 1906, the United States discovered that the
Netherlands also claimed sovereignty over the island, and the two parties agreed to submit to binding
arbitration by the Permanent Court of Arbitration. While the U.S maintained that it was part of the
Philippines, the Netherlands claimed it as their own. The claim of the U.S was back up with the fact
that the islands had been ceded by Spain by the Treaty of Paris in 1898, and as successor to the rights
of Spain over the Philippines, it based its claim of title in the first place on discovery. On the part of
the Netherlands, they claimed to have possessed and exercised rights of sovereignty over the island
from 1677 or earlier to the present. The issue that was put forward was that whether a title which is
inchoate prevail over a definite title found on the continuous and peaceful display of sovereignty?

HELD: The Netherlands' primary contention was that it held actual title because the Netherlands had
exercised authority on the island since 1677. The arbitrator noted that the United States had failed to
show documentation proving Spanish sovereignty on the island except the documents that specifically
mentioned the island's discovery. Additionally, there was no evidence that Palmas was a part of the
judicial or administrative organization of the Spanish government of the Philippines. However, the
Netherlands showed that the Dutch East India Company had negotiated treaties with the local princes
of the island since the 17th century and had exercised sovereignty, including a requirement of
Protestantism and the denial of other nationals on the island. The arbitrator pointed out that if Spain
had actually exercised authority, there would have been conflicts between the two countries, but none
is provided in the evidence. A title that is inchoate cannot prevail over a definite title found on the
continuous and peaceful display of sovereignty. The peaceful and continuous display of territorial
sovereignty is as good as title. However, discovery alone without subsequent act cannot suffice to
prove sovereignty over the island. The territorial sovereignty of the Netherlands was not contested by
anyone from 1700 to 1906. The title of discovery at best an inchoate title does not therefore prevail

3
(1928) II RIAA 829
over the Netherlands claims of sovereignty. Under the decision, three precedents for resolving island
territorial disputes were decided:

 Title based on contiguity has no standing in international law;

 Title by discovery is only an inchoate title;
 If another sovereign begins to exercise continuous and actual sovereignty openly and
publicly and with good title, but the discoverer does not contest the claim, the claim by the
sovereign that exercises authority is then greater than a title based on mere discovery.

CONCLUSION

In short, we have discussed the significance of territory for a State to exist, the exercise of sovereignty
by a state over its territory and the kind of conflicts that might emerge due to state boundaries. Also
the various methods by states acquire and lose territories were briefly discussed. In the light of the
foregoing discussion, it can be maintained that there is a greater weight in the opinion that discovery
alone does not constitute an independent mode for acquisition of territory; at best it creates an inchoate
title which must be perfected within a reasonable time by effective occupation, or else it will elapse.
There is a strong requirement for a powerful and authoritative international agency which can
effectively take steps to solve and possibly avoid issues that concern state territory. With an increase
of globalization in today’s world, there is already a fair portion of every state’s population that is
residing outside its own territory. International law principles need to be developed so as to keep in
pace with the rampant globalization and industrialization across the globe.
RESOURCES
a. (Jennings, n.d.)
b. (Sharma, n.d.)
c. Dickinson, E. (1933). The Clipperton Island Case. The American Journal of International
Law, 27(1), 130-133. doi:10.2307/2189797
d. HTTPS://WWW.LAWCTOPUS.COM/ACADEMIKE/SOVEREIGN-STATE- TERRITORY/