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.
· A. CONQUEST: 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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