TERRITORIAL
SOVEREIGNTY
By Atty KM Noveda
Main Reference: International Law
by Miriam Defensor Santiago
Four Types of Spatial Regime
• 1. Territorial sovereignty;
• 2. Territory not subject to the sovereignty of any state or states
and which possess a status of its own, such as trust territories;
• 3. Res Nullius, which has not yet been placed under the
territorial sovereignty of any state; and,
• 4. Res Communes, consisting of outer space and the high seas,
including exclusive economic zones.
What is territorial sovereignty?
• It consists of:
• (1) land territory, including islands, islets, rocks, and
reefs;
• (2) the territorial sea appurtenant to the land; and,
• (3) the seabed and subsoil of the territorial sea.
As an element of statehood, state territory forms the basis
of the legal competence of states, which is described by the
terms “sovereignty” and “jurisdiction.”
Concept of Sovereignty
• Sovereignty is analogous to ownership.
• It includes imperium and dominium.
• Imperium refers to the general power of government,
administration, and disposition.
• Dominium refers to ownership of property, whether public
or private.
Concept of Sovereignty
• Sovereignty remains as an attribute of legal
personality and is not derogated by the
temporary administration of the territory, such
as that which occurs during belligerent
occupation of enemy territory in time of war.
Ex: Japanese occupation of the Philippines
during the Second World War.
Concept of Sovereignty
• Territorial sovereignty is likewise to be
distinguished from the ownership of rights to
the continental shelf, the right of passage, or the
right to fish.
• Territorial sovereignty is likewise to be
distinguished from administration of a territory
over which no state possesses territorial
sovereignty.
Concept of Sovereignty
• There can even be indeterminate sovereignty
over territory not res nullius, as when the power
holder renounces sovereignty.
• In the Philippines and other states that have
entered into Status of Force Agreements with
major powers, it is important to emphasize that
treaty restrictions do not affect territorial
sovereignty as a title, even when the restriction
concerns matters of national security and
preparation for defense.
“Shared” Sovereignty
• There are several cases of shared sovereignty.
One is the condominium, which “exists when
two or more states exercise sovereignty
conjointly over a territory.”
• This is exemplified by the joint sovereignty by
three coastal states over the Gulf of Fonseca.
While in a condominium sovereignty is jointly
exercised on a basis of equality, other types of
shared sovereignty could be exercised on the
basis of dominance, as in the cases of vassalage.
Parts of State Territory
• Territorial sovereignty is exercised over land
permanently above low-water mark, and the
territorial subsoil, airspace, and internal waters
associated with or analogous to land territory.
If there is sovereignty over the surface, there
is sovereignty over the subsoil.
Parts of State Territory
• Since there is sovereignty over the land territory, internal
waters, and the territorial sea, sovereignty is well possessed
over the corresponding superjacent airspace.
• Under customary law, other states may use such superjacent
airspace—for navigation or other purposes—only with the
consent of the territorial sovereign.
Parts of State Territory
• There is no right of innocent passage over such
airspace. However, aerial trespass justifies
merely preventive action on the part of the
sovereign state, but not attach with intent to
destroy.
• Territory includes superjacent air space, since it
is appurtenant to land territory and territorial
waters.
Parts of State Territory
• What is the outer limit of state sovereignty will
likely be determined by drawing an analogy
between airspace and the high seas, as res
communes.
• Internal waters are lakes and rivers included in the
land territory of a state, as well as waters on the
landward side of baselines from which the
breadth of the territorial sea is calculated.
Concept of Title
• Sovereignty, it has been noted, is the legal
competence of the state over its territory.
• Sovereignty has two senses:
• (1) the concept of title, which essentially refers to the
validity of claims to territorial sovereignty against
other states; and,
• (2) the legal competence flowing from title. It is title
which confers competence.
Concept of Title
• Thalweg principle - it provides that when a
river is navigable, the middle of the principal
channel of navigation is the boundary.
Concept of Title
• Another principle in customary law is nemo dat
quod non habet (no man can give another any
better title than he himself has).
Acquisition of Sovereignty
• As indicated in the Lotus case, sovereignty is
the most extensive form of jurisdiction,
because it is absolute and complete.
• The conventional modes of acquisition over
territory are occupation and prescription,
discovery, cession and treaty, conquest,
accretion and avulsion, and judicial decisions.
Acquisition of Sovereignty
• Occupation and prescription are methods of
effective control, the first in free territory or terra
nullius (occupation), and the second in territory
belonging to another state (prescription).
• The intention to acquire sovereignty, coupled
with minimal acts of effective occupation, are
sufficient.
Acquisition of Sovereignty
• Actual display needs to be accompanied by
animus or intention, the state should either make
an extensive display of authority, publish notices
of sovereignty, or declare the application of
national laws to the occupied territory.
• For the display of sovereignty to be continuous,
it must be on-going, and must exist up to the
critical date , meaning the date at which the
question of sovereignty is to be assessed…
Acquisition of Sovereignty
• …the date at which the dispute between the
two parties become crystallized and after
which no acts can be taken into account in
determining sovereignty.
• The display must be peaceful, meaning that it
is not challenged by other states.
Acquisition of Sovereignty
• There is no system for registration of title in
international law. If there is no formal basis for
title in a treaty or judgment, the concept of
effective occupation becomes significant.
• The term “occupation” comes from the Roman
law term occupation and does not necessarily mean
actual settlement or a physical holding.
Acquisition of Sovereignty
• Instead, “occupation” refers to state activity,
particularly acts of administration. In the
past, the concept of effective occupation was
employed when sovereignty was extended to
terra nullius, which includes new land,
abandoned territory, or territory possessed by
people who cannot be considered as a social
and political community.
Acquisition of Sovereignty
• Instead, “occupation” refers to state activity,
particularly acts of administration. In the
past, the concept of effective occupation was
employed when sovereignty was extended to
terra nullius, which includes new land,
abandoned territory, or territory possessed by
people who cannot be considered as a social
and political community.
Acquisition of Sovereignty
• In the past, occupation was described in terms of
settlement and close physical possession. But today,
the law has changed.
• Occupation is now described in terms of display in
state activity, and the interpretation of the facts in
the light of a legal policy favoring stability, and
allowing for the special characteristics of uninhabited
and remote territories.
Acquisition of Sovereignty
• The old 1973 Philippine Constitution asserted
sovereignty in territories over which the
Philippines has historic title, such as Sabah,
Batanes, and the Marianas Islands.
• The concept is known as ancient, original, or
historic title, or the principle of “immemorial
possession.”
Acquisition of Sovereignty
• As in the rest of Asia, this concept relies on
traditional boundaries, and relies upon
evidence of general repute or opinion as to
matters of historical fact. As long as there is
appropriate evidence, international tribunals
have proved willing to recognize the concept
of ancient or original title.
Acquisition of Sovereignty
• Discovery as a form of acquisition of
sovereignty gives only an inchoate title to
territory, which matures into full sovereignty,
only if it is followed within a reasonable time
by effective occupation.
Acquisition of Sovereignty
• Cession and treaty as a mode of acquisition is
governed by the maxim non dat qui non habet
meaning what is not had cannot be transferred.
• Under customary international law, the treaty of
cession is void if its conclusion has been
governed by the threat or use of force.
Acquisition of Sovereignty
• Thus, a post-war treaty of cession between victor
and vanquished states would be void…
• The aim of outlawing aggression and its
consequences includes the promotion of
peaceful settlement of border disputes, such as
the 1984 agreement, under which the UK
transferred sovereignty to China over the crown
colony of Hong Kong.
Acquisition of Sovereignty
• Conquest is no longer a legal mode of
acquisition, because the use of aggressive
force has become unlawful, and thus a treaty
of cession obtained by force is void. Whether
force is defensive or aggressive, it is not a
valid mode of acquisition of territory.
Acquisition of Sovereignty
• The modern process of territorial acquisition is
largely governed by two principles of customary
law:
• Uti possidetis
• Self-determination
Under the principle of uti possidetis, upon independence the
frontiers of an old colonial territory become permanent, and
thereafter, cannot be altered by the unilateral act of another state.
Acquisition of Sovereignty
Under the principle of self-determination, the people
of a territory are entitled as a matter of legal right to
exercise sovereignty over a newly-independent state;
or within an already independent state, where they
constitute a distinct ethnic or religious group.
Creation and Transfer
of Sovereignty
With respect to boundary disputes, the
doctrine of intertemporal law provides
that “the situation in question must be
appraised, and the treaty interpreted, in the
light of the rules of international law as they
existed at the time, and not as they exist
today.”
Creation and Transfer
of Sovereignty
In any boundary dispute, the decision will likely
turn on certain critical dates, depending,
according to Brownlie, “on the inevitable logic
of the law applicable to the particular facts and,
in other cases, on the practical necessity of
confining to the process of decision to relevant
and cogent facts and thus to acts prior to the
existence of a dispute.”
Creation and Transfer
of Sovereignty
Roots of title, according to Brownlie:
1. Treaty of cession, referring to an agreement
between a grantor who confers a right to possess
certain territory as a sovereign to the grantee, who
takes possession in accordance with the treaty.
2. Other dispositions by treaty, referring to a
treaty marking a reciprocal recognition of
sovereignty in solemn form.
Creation and Transfer
of Sovereignty
Roots of title, according to Brownlie:
3. Consent in other forms, referring to the absence of any
formal agreement and instead to an informal expression of
consent, such as acquiescence, estoppel and recognition.
4. Uti possidetis (juris), referring to “the general
principle that pre-independence boundaries of former
administrative divisions all subject to the same sovereign
remain in being.
Creation and Transfer
of Sovereignty
Roots of title, according to Brownlie:
5. Disposition by joint decision of the principal
powers, referring to the territory of the Central
Powers in the First World War, and of the Axis
Powers in the Second World War. Brownlie suggests,
that the legal basis for this power of disposition is a
“right to impose measures of security, which
may include frontier changes, or an aggressor
consequent on his defeat in a war of collective
defense and sanction.”
Creation and Transfer
of Sovereignty
Roots of title, according to Brownlie:
6. Renunciation or relinquishment referring to
territory which does not become terra nullius and
where there is no element of reciprocity.
Renunciation may be a recognition that another
state has title.
7. Adjudication by a judicial organ, referring to a
declaration by the ICJ on the status of territory.
Creation and Transfer
of Sovereignty
Roots of title, according to Brownlie:
8. Agreements concluded with local rulers,
referring to “territories inhabited by tribes or
peoples having a social and political organization
(which) were not regarded as terra nullius. . . Such
agreements . . . were regarded as derivative roots of
title, and not original titles obtained by occupation
of terra nullius.
Changes in Sovereignty
• Changes in state sovereignty are also known as “state
succession.”
• They present a complicated problem because attempts in
codification, thus far, have failed.
• Both the 1978 Vienna Convention on State Succession in
Respect of Treaties and the 1983 Vienna Convention on
State Succession in Respect of State Property, Archives
and Debts remain unratified.
Changes in Sovereignty
• Under the principle of continuity, a successor state
automatically succeeds to territorial boundaries,
whether fixed by treaty or customary law.
• The wider principle includes the rule of automatic
succession to boundary treaties. As a result, newly
independent states have inherited the boundaries
drawn by former colonial powers.
Changes in Sovereignty
• The principle of territorial integrity, or uti possidetis,
was recognized by the ICJ as follows:
• There is no doubt that the obligation to respect pre-
existing international frontiers in the event of a State
succession derives from a general rule of
international law, whether or not the rule is expressed
in the formula of uti possidetis.
Changes in Sovereignty
• In recent times, state succession has taken place
through secession, dismemberment, and unification.
• Succession by secession occurred when in 1990-91,
the three Baltic states of Estonia, Latvia and
Lithuania declared independence from the Soviet
Union.
Changes in Sovereignty
Changes in Sovereignty
• Succession by dismemberment has
recently occurred in the Soviet
Union, Yugoslavia, and
Czechoslovakia. The Soviet Union
was dismembered on 21 December
1991 when 11 Soviet Republics
signed the Alma Alta Declaration,
establishing the Commonwealth of
Independent States (CIS).
Changes in Sovereignty
• Succession by unification has recently occurred in
Germany and in Yemen. In the first case, the
Constitution, Art. 23 of West Germany, also known
as Federal Republic of Germany, provided for the
accession of East Germany, also known as the
German Democratic Republic.
• After accession, the identity and continuity of the
Federal Republic was retained.
Changes in
Sovereignty
• The unification involved
the complete incorporation
of one state into another
state, not a mere transfer of
state territory.
• Prior to accession, East
Germany had been a state
in itself, and had been an
independent actor in
international law.
• The new Germany took the
position that the succession
took place under the
principle of “moving treaty
boundaries.”
The Philippine Claim to Sabah
• History
• Long ago, the Philippines and the island of Borneo
formed one land mass. Western archaeologists are
convinced that land bridges used to connect these two
areas.
• Eventually, Borneo lost its land bridge and became a
separate island, which fell under separate kingdoms as
sultanates.
• When the Spanish navy reached the Philippines, they were
forced to enter into treaties with the various sultans.
The Philippine Claim to Sabah
• History
• In 1640, it appears that the Spaniards entered into a treaty
with the sultans of Sulu and Maguindanao. Under the
treaty, the Spaniards allegedly recognized the
independence of the two sultanates, and thus the Sulu
sultan became the sovereign ruler of Sabah.
• In addition, a ten-year civil war broke out in Brunei
between two sultans, one of whom – Sultan Muaddin –
requested for military aid from the Sulu sultan.
The Philippine Claim to Sabah
• History
• In 1675, the Brunei civil war ended, and the victor Sultan
Muaddin ceded Sabah to the Sulu sultan.
• In 1759, a Scottish voyager – Alexander Dalrymple – was able
to reach the Sulu Sea and in 1877, a private company obtained
land grants from the Brunei and Sulu sultans.
• In 1878, the Sulu sultan entered into a deed of pajak with an
Austrian named Gustavus Baron de Overbeck, and an
Englishman named, Alfred Dent.
The Philippine Claim to Sabah
The Philippine Claim to Sabah
The deed ( a written instrument conveying some interest in
property) was written in Arabic (Jawi) script.
In 1946, Prof. Harold Conklin translated the term pajak as
“lease.” The 1878 Deed provided for the annual rental.
The Philippines claims that the term pajak is a lease, while
Malaysia claims that pajak means cession. Cession means the
relinquishment or transfer of land from one state to another.
The Philippine Claim to Sabah
In 1881, the syndicate was chartered as the British North
Borneo Co. (BNBC). Subsequently in 1898, under the Treaty of
Paris, Spain sold the Philippines to the US.
In 1885, there was the Madrid Protocol- an agreement between
Great Britain, Germany and Spain to recognize the sovereignty
of Spain over the Sulu archipelago, as well as the limit of
Spanish influence in the region.
The Philippine Claim to Sabah
Under the Madrid Protocol, Spain relinquishes all claim to Borneo.
During the World War II, the Japanese occupied Brunei. After the
war in 1946, the British crown granted to Brunei the status of a
crown colony.
In 1963, Sabah joined Malaysia.
The Philippine Claim to Sabah
In 1961, Pres. Diosdado Macapagal filed the Philippine claim to
Sabah.
In 1962, the heirs of the Sulu sultan issued a declaration entitled
“Recognition and authority in favor of the Republic of the
Philippines,” which ceded and transferred sovereignty over Sabah
to the Philippines.
Over the years, the Sulu Sultan’s heirs eventually met Pres. Corazon
Aquino, who advised them to organize among themselves.
The Philippine Claim to Sabah
In 1986, she wrote the Malaysian Prime Minister asking him to
increase the lease payment. However, Malaysia contends that in
1989, the Sulu sultan’s heirs revoked the authorization issued to the
Philippine government as their representative. In 2001, another heir
sent another demand letter for an increase in lease payments.
In 2008, Pres. Gloria Macapagal Arroyo issued guidelines which
required any official act related to Sabah to first obtain clearance
from the Department of Foreign Affairs.
The Malaysian Claim to Sabah
The Malaysian claim is based on the argument that the original
document was a treaty of cession. Malaysia traces its claim to the
1878 Deed signed by the Sulu sultans in favor of the adventurers
Overbeck and Dent.
It is claimed that the two adventurers entered into the 1878 Deed as
representatives of the BNBC, and thus attained sovereignty over
Sabah.
Under a fatal misconception – accidental or not – the BNBC turned
over sovereignty to the British Crown, which in turn devolved to
Malaysia.
