THE PRINCIPLE OF TERRITORIAL SOVEREIGNTY IN INTERNATIONAL LAW BY OLORUNTUYI OLUWASEUN EMMANUEL

Sovereignty is a vital and peculiar element of a sovereign state which is a contemporary legal order.  Sovereignty, as we all know, is an essential element of a state which is free from external control and has a hierarchy of norms to make decisions within it's territory. Article 2 (1) of the United Nations Charter of 1945 spells outs the "sovereign equality" of members state which means sovereignty is important to the enforcement of International laws across the globe.

A fundamental principle of international law is that a state can control all activities within territories which it has sovereignty over. Under International law, it is a power and right, recognized or effectively asserted in respect to defined part of the globe to govern in respect to the part.

There are different ways states acquired territorial sovereignty historically and has delineated their land, airspace and maritime boundaries. These are pivotal in the territorial Sovereignty which defines them from other States territories and is used as measures to determine sovereignty and  boundary disputes.

·     ACONQUEST: Where territory is acquired through threat and use of armed forces(although use of threat and military occupation is not recognize as lawful means of acquiring territories since the United Nations Charter 1945 came in force)

·    B.  PRESCRIPTION: By which a doubtful title is legitimized by long continued, uninterrupted and peaceful possession where another state has neglected.

·     C. POSSESSION or voluntarily transfer by treaty

·     D. Arbitral award by the international court of justice regarding boundary dispute (e.g Nigeria v Cameron over bakassi pennisula)

Territorial sovereignty is very important for the peace and prosperity of members states of the United Nations that was the reason a provision was made in Article 2 (4) of the United Nations Charter of 1945 which expressly states that:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

This is purposely to maintain world peace and protect the integrity of international law which serves as the enabling which brings Nations together under the umbrella of peace.

When the charter that gave birth to the United Nations was signed in New York City USA in 1945, after the World War ll, International law was birthed. It is seen as an enabling law to see that every nation is free from exploitation and dominance, politically, socially and economically. This act led to the independence of many Nations across the globe and give them the playing ground to participate in the International politics .

After the charter was Incorporated in 1945, Cour Internationale de Justice as a judicial arm of the United Nations which is saddled with the responsibility of settling dispute which is brought before the court in Hague, Netherlands. Cour Internationale de justice has the jurisdiction to adjudicate on Land, maritime, airspace and nuclear weapon issues. It has settled disputes among nation and setting of arbitral award on various issues as it emanate.

Arbitral Award of 3rd of October 1899 (Guyana v. Venezuela)  which a judgement was reached on 18 December 2020, the court found that it has jurisdiction to entertain the application filled by Guyana in so far as it concerns the validity of the Arbitral Award of October 3rd 1899 and the related question of the definitive settlement of the land boundary dispute between Guyana and Venezuela, History of the proceedings (see also press releases Nos. 2018/17, 2018/31, 2020/15 and 2020/18).

 In its Application filed on 29 March 2018, the Co-operative Republic of Guyana (hereinafter“Guyana”) requests the Court “to confirm the legal validity and binding effect of the Award regarding the Boundary between the Colony of British Guiana and the United States of Venezuela, of 3 October 1899 (‘1899 Award’)”. The Applicant contends that the 1899 Award was “a full, perfect, and final settlement” of all questions relating to determining the boundary line between the colony of British Guiana and Venezuela. The Applicant sought to found the jurisdiction of the Court, under Article 36, paragraph 1, of the Statute of the Court, on Article IV, paragraph 2, of the “Agreement to Resolve the Controversy between Venezuela and the United Kingdom of Great Britain and Northern Ireland over the Frontier between Venezuela and British Guiana” signed at Geneva on 17 February 1966 (the “Geneva Agreement”) and the decision of the Secretary-General of the United Nations taken on 30 January 2018, to choose, pursuant to this last provision, the Court as the means to be used for the resolution of the controversy between the Parties.

On 18 June 2018, the Bolivarian Republic of Venezuela (hereinafter “Venezuela”) stated that it considered that the Court lacked jurisdiction to hear the case and that Venezuela would not participate in the proceedings. The Court was of the view that in the circumstances of the case, it was necessary first of all to resolve the question of its jurisdiction, and that this question should accordingly be separately determined before any proceedings on the merits.

A public hearing on the question of jurisdiction was held in hybrid format on 30 June 2020, with some Members of the Court and the Registrar attending in person in the Great Hall of Justice of the Peace Palace in the Hague. The remainder of the judges and Guyana’s delegation participating remotely via video link. Oral arguments were presented by Guyana. Venezuela did not participate in the oral proceedings.

At the end of the oral proceedings, Guyana made the following submissions to the Court:

“On the basis of its Application of 29 March 2018, its Memorial of 19 November 2018, and its oral pleadings, Guyana respectfully requests the Court:

1. To find that it has jurisdiction to hear the claims presented by Guyana, and that these claims are admissible; and

2. To proceed to the merits of the case.”The Court’s Judgment of 18 December 2020 In its Judgment, which is final, without appeal and binding on the Parties, the Court:

(1) By twelve votes to four, finds that it has jurisdiction to entertain the Application filed by the Co-operative Republic of Guyana on 29 March 2018 in so far as it concerns the validity of the Arbitral Award of 3 October 1899 and the related question of the definitive settlement of the land boundary dispute between the Co-operative Republic of Guyana and the Bolivarian Republic of Venezuela;

(2) Unanimously, finds that it does not have jurisdiction to entertain the claims of the Co-operative Republic of Guyana arising from events that occurred after the signature of the Geneva Agreement.

The case highlighted above depict the jurisdiction of cour internationale de justice to make Arbitral Award  and settling of boundary disputes. Another cases on territorial sovereignty which was brought forward before the Cour internationale de justice for determination is the Case between Nigeria and Cameron over oil rich bakassi pennisula in 2002 which has cause controversy between the neighboring states.

On 29 March 1994, Cameroon initiated proceedings against Nigeria with respect to the question of sovereignty over the Bakassi Peninsula, and requested the Court to determine the land and maritime frontier between the two States. The Court’s jurisdiction was established based on compulsory jurisdiction.

In its Application, Cameroon referred to “an aggression by the Federal Republic of Nigeria, whose troops are occupying several Cameroonian localities on the Bakassi Peninsula” and, asked the Court, inter alia, to adjudge and declare that sovereignty over the Peninsula of Bakassi was Cameroonian, by virtue of international law, and that Nigeria had violated and is violating the fundamental principle of respect for frontiers inherited from colonization (uti possidetis juris), as well as other rules of conventional and customary international law, and that Nigeria’s international responsibility was involved. Cameroon also requested the Court to proceed to prolong the course of its maritime boundary with Nigeria up to the limit of the maritime zone which international law placed under their respective jurisdictions.

On 6 June 1994, Cameroon filed in the Registry an Additional Application “for the purpose of extending the subject of the dispute” to a further dispute described as relating essentially “to the question of sovereignty over part of the territory of Cameroon in the area of Lake Chad”. While also requesting the Court to specify definitively, the frontier between Cameroon and Nigeria from Lake Chad to the sea. That Application was treated as an amendment to the initial Application. After Nigeria had raised certain preliminary objections, Cameroon presented, on 1 May 1996, a written statement of its observations and submissions relating thereto, in accordance with an Order of the President dated 10 January 1996.

Moreover, on 12 February, 1996, Cameroon, referring to the “grave incidents which [had] taken place between the . . . forces [of the Parties] in the Bakassi Peninsula since . . . 3 February 1996”, asked the Court to indicate provisional measures. By an Order dated 15 March 1996, the Court indicated a number of provisional measures aimed principally at putting an end to the hostilities. By its Judgment of 11 June 1998, it decided on the preliminary objections of parties. In October 1998, Nicaragua initiated a request for the interpretation of this judgement, which was rejected by the Court.

On 30 June 1999, the Republic of Equatorial Guinea filed an Application for permission to intervene in the case (which the Court allowed). In its Judgment of 10 October 2002, the Court determined the course of the boundary, between Cameroon and Nigeria. In its Judgment the Court requested Nigeria, expeditiously and without condition, to withdraw its administration and military or police forces from the area of Lake Chad falling within Cameroonian sovereignty and from the Bakassi Peninsula. It also requested Cameroon expeditiously and without condition to withdraw any administration or military or police forces which might be present along the land boundary from Lake Chad to the Bakassi Peninsula on territories which, pursuant to the Judgment, fell within the sovereignty of Nigeria. The latter had the same obligation in regard to territories in that area which fell within the sovereignty of Cameroon. The Court took note of Cameroon’s undertaking, given at the hearings, to “continue to afford protection to Nigerians living in the [Bakassi] peninsula and in the Lake Chad area”. Finally, the Court rejected Cameroon’s submissions regarding the State responsibility of Nigeria, as well as Nigeria’s counter-claims.

Lastly on territorial sovereignty, In regards to the importance of territorial  sovereignty in International law we tend to have a look at another boundary dispute between Botswana and Namibia which was heard in Peace Palace, Hague.

On 29 May 1996, the Government of Botswana and the Government of Namibia by joint agreement submitted to the Court of the dispute concerning the boundary around Kasikili/Sedudu Island and the legal status of that island.

In its Judgment of 13 December 1999, the Court began by stating that the island in question, which in Namibia is known as “Kasikili”, and in Botswana as “Sedudu”, is approximately 3.5 sq km in area, that it is located in the Chobe River, which divides around it to the north and south, and that it is subject to flooding of several months’ duration, beginning around March. It briefly outlined the historical context of the dispute, then examined the text of the 1890 Treaty, which, in respect of the region concerned, located the dividing line between the spheres of influence of Great Britain and Germany in the “main channel” of the River Chobe. In the Court’s opinion, the real dispute between the Parties concerned the location of that main channel, Botswana contending that it was the channel running north of Kasikili/Sedudu Island and Namibia the channel running south of the island. Since the Treaty did not define the notion of “main channel”, the Court itself proceeded to determine which was the main channel of the Chobe River around the Island. In order to do so, it took into consideration, inter alia, the depth and the width of the channel, the flow (i.e., the volume of water carried), the bed profile configuration and the navigability of the channel. After considering the figures submitted by the Parties, as well as surveys carried out on the ground at different periods, the Court concluded that “the northern channel of the River Chobe around Kasikili/Sedudu Island must be regarded as its main channel”.

Having invoked the object and purpose of the 1890 Treaty and its travaux préparatoires, the Court examined at length the subsequent practice of the parties to the Treaty. The Court found that that practice did not result in any agreement between them regarding the interpretation of the Treaty or the application of its provisions. The Court further stated that it could not draw conclusions from the cartographic material “in view of the absence of any map officially reflecting the intentions of the parties to the 1890 Treaty” and in the light of “the uncertainty and inconsistency” of the maps submitted by the Parties to the dispute. It finally considered Namibia’s alternative argument that it and its predecessors had prescriptive titles to Kasikili/Sedudu Island by virtue of the exercise of sovereign jurisdiction over it since the beginning of the century, with the full knowledge and acceptance of the authorities of Botswana and its predecessors.

The Court found that, while the Masubia of the Caprivi Strip (territory belonging to Namibia) did indeed use the island for many years, they did so intermittently, according to the seasons and for exclusively agricultural purposes, without it being established that they occupied the island à titre de souverain, i.e., that they were exercising functions of State authority there on behalf of the Caprivi authorities. The Court, therefore, rejected that argument. After concluding that the boundary between Botswana and Namibia around Kasikili/Sedudu Island followed the line of deepest soundings in the northern channel of the Chobe and that the island formed part of the territory of Botswana, the Court recalled that, under the terms of an agreement concluded in May 1992 (the “Kasane Communiqué”), the Parties had undertaken to one another that there should be unimpeded navigation for craft of their nationals and flags in the channels around the Island.

Sovereignty in international law cannot be over emphasized. It must be respected in order to foster peace among neighboring states and ensure the rule of law is protected stricto senso. The Court also has jurisdiction to give advisory opinion to the sovereignty and independence of a state as stated in Article 65 of the Statute Court Internationale de Justice. This can be seen in the case concerning  the provisional institutions of self-government Kosovo in 2009. Controversy aroused as to the declaration of self-government by the provisional institution of self government as to whether the Independence is in accordance with international law.

On 8 of October 2008, the United Nations General Assembly adopted a resolution in which referring to Article 65 of the Statute of the Cour Internationale de Justice, it requested the court to render an advisory opinion on the following question:

Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?

On this basis the General Assembly of the United Nations requested for a better view as to the legality of the Independence of Kosovo under international law because it falls within the jurisdiction of the court to do so. While deciding on the international administration of Kosovo, the Security Council reaffirmed the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia[/Republic of Serbia] and the other States of the region.

Decisions of the Court is binding and must be followed by member states of the United Nations in order to respect the hierarchy of norms in international law. Any country who is not satisfy by the decision of the Court might resort to the Security Council. It is, thus, of my humble opinion that territorial Sovereignty in international law is a principle every state must respect in order to foster world Peace and ensure the enforcement of international law in all spheres and across the globe. All states are bound by the generally accepted norms and principles of international law, including in particular those related to respect for the sovereignty and territorial integrity of States, inviolability of their internationally recognized borders and non-interference in their internal affairs.

 

 

OLORUNTUYI OLUWASEUN EMMANUEL is a student of law at Faculty Of Law, Adekunle Ajasin University. He can be reached via:

oloruntuyioluwaseun@gmail.com or 08112113530

 

 

 

 

 

 

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