p. 203) 8 Forms of Governmental Authority over Territory
In spatial terms the law knows four types of regime: territorial sovereignty, territory not subject to the sovereignty of any state or states and which possesses a status of its own (e.g. trust territories), res nullius, and res communis. Territorial sovereignty extends principally over land territory and the territorial sea, its seabed and subsoil. The concept of territory includes islands, islets, rocks, and (in certain circumstances) reefs.1 Exceptionally an area of territory may be under the sovereignty of several states (a condominium), though in practice these have always been states with other territory subject to their exclusive sovereignty.2 A res nullius consists of an area legally susceptible to acquisition by states but not as yet placed under territorial sovereignty. The res communis, consisting of the high seas (which for present purposes include exclusive economic zones) and also outer space, is not capable of being placed under sovereignty. In accordance with customary international law and the dictates of convenience, the airspace above and subsoil beneath state territory, the res nullius, and the res communis are included in each category.
References(p. 204) 2. Key Terms and Distinctions
(A) Sovereignty and Jurisdiction
State territory and its appurtenances (airspace and territorial sea), together with the government and population within its boundaries, constitute the physical and social base for the state. The legal competence of states and the rules for their protection depend on and assume the existence of this stable, physically identified (and normally legally delimited) base.
The competence of states in respect of their territory is usually described in terms of sovereignty and jurisdiction, but the terminology is not employed very consistently even in legal sources. At the same time, some uniformity of usage may be noted. The normal complement of state rights, the typical case of legal competence, is described commonly as ‘sovereignty’: particular rights, or accumulations of rights quantitatively less than the norm are referred to as ‘jurisdiction’. In brief, ‘sovereignty’ is shorthand for legal personality of a certain kind, that of statehood; ‘jurisdiction’ refers to particular aspects of the substance, especially rights (or claims), liberties, and powers. Of particular significance is the criterion of consent. State A may have considerable forces stationed within the boundaries of state B. State A may also have exclusive use of a certain area of state B, and exclusive jurisdiction over its own forces. If, however, these rights exist with the consent of the host state then state A has no claim to sovereignty over any part of state B.3 In such case there has been a derogation from the sovereignty of state B, but state A does not gain sovereignty as a consequence. It would be otherwise if state A had been able to claim that exclusive use of an area hitherto part of state B belonged to state A as sovereign, as of right and independently of the consent of any state.
(B) Sovereignty and Ownership
The analogy between sovereignty over territory and ownership of real property appears more useful than it really is. For the moment it is sufficient to establish certain distinctions. The legal competence of a state includes considerable liberties in respect of internal organization and the disposal of territory. This general power of government, administration, and disposition is imperium, a capacity recognized and delineated by international law. Imperium is distinct from dominium in the form of public ownership of property within the state;4 a fortiori in the form of private ownership recognized as such by the law.5
It may happen that the process of government over an area, with the concomitant privileges and duties, falls into the hands of another state. Thus after the defeat of Nazi Germany in the Second World War the four major Allied Powers assumed supreme power in Germany.6 The German state did not, however, disappear. What occurred is akin to legal representation or agency of necessity. Indeed, the legal basis of the occupation depended on its continued existence. The very considerable derogation of sovereignty involved in the assumption of powers of government by foreign states, without the consent of Germany, did not constitute a transfer of sovereignty. A similar case, long recognized in customary law, is the belligerent occupation of enemy territory in time of war.7 The important features of ‘sovereignty’ in such cases are the continued existence of a legal personality and the attribution of territory to that legal person and not to holders of the territory for the time being.8
(D) ‘Sovereign Rights’ beyond State Territory
A further source of confusion is the fact that sovereignty is not only used as a description of legal personality accompanied by independence but also as a reference to various types of rights, indefeasible except by special grant, in the patrimony of a state, for example the ‘sovereign rights’ a coastal state has over the resources of the continental shelf,9 or a prescriptive right of passage between the main territory andReferences(p. 206) an enclave. Rights which are ‘owned’ and in this special sense ‘sovereign’ involve a broader concept, not reducible to territorial sovereignty.
While the concept of territorial sovereignty normally applies in relation to states, there is now considerable experience with international organizations not only administering territory in the capacity of agent but also assuming legal responsibility for territory in respect of which no state has title. Such a situation arose in 1966 when the General Assembly terminated the Mandate of South West Africa. The legal relations of an organization to the territory in such a case can only be classified as sui generis because terms and concepts like ‘sovereignty’ and ‘title’ are historically associated with the patrimony of states.10
(A) Terminable and Reversionary Rights
Territorial sovereignty may be defeasible in certain circumstances by operation of law, for example by fulfilment of a condition subsequent or the failure of a condition under which sovereignty was transferred where there is an express or implied condition that title should revert to the grantor. The first situation is exemplified by the status of Monaco before 2005; its independence was conditional, in that if there was a vacancy in the Crown of Monaco it would have become a protectorate of France.11 Until such a condition operates the tenant had an interest equal in all respects to that of sovereignty.12
The second type of case was represented, on one view, by the system of mandates created after the First World War. The mandatories, or administering states for the various ex-German territories, were nominated by the five principal Allied and Associated Powers, in whose favour Germany had renounced sovereignty. On this basis, and because they took the decision to place the territories under mandate, it was suggested that ‘the Principal Powers retained a residual or reversionary interest in the actual territories concerned except where these have attained self-government or independence’.13 The precise incidents of such a reversion would depend on the circumstances of eachReferences(p. 207) case.14 But they did not amount to sovereignty; they took the form of a power of disposition, or of intervention or veto in any process of disposition.
(B) Residual Sovereignty
The United States will have the right to exercise all and any powers of administration, legislation and jurisdiction over the territory and inhabitants of these islands, including their territorial waters.15
US courts, in holding that inhabitants of the Ryukyus were not nationals of the US and that the islands were a ‘foreign country’ in connection with the application of various US statutes, referred to the ‘de facto sovereignty’ of the US and to the Japanese interest in terms of ‘residual sovereignty’ or ‘de iure sovereignty’.16 Restoration of full Japanese sovereignty was the subject of subsequent bilateral agreements.17
Notwithstanding its autonomy, Crete has not ceased to be a part of the Ottoman Empire. Even though the Sultan had been obliged to accept important restrictions on the exercise of his rights of sovereignty in Crete, that sovereignty had not ceased to belong to him, however it might be qualified from a juridical point of view.18
(C) International Leases
There are examples of concessions of territory, including full governmental authority, for a period of years (the New Territories of Hong Kong prior to 1997)19 or even inReferences(p. 208) perpetuity (Guantanamo Bay). In such cases the term ‘lease’ may be applied, but it is no more than a superficial guide to the interest concerned: each case depends on its particular facts and especially on the precise terms of the grant. Certainly there is a presumption that the grantor retains residual sovereignty. Certain types of ‘lease’ were however, virtual cessions of territory.20 The return of full control over several leased territories (Hong Kong in 1997, Macao in 1999, the Panama Canal Zone in 2000)21 may indicate a trend towards confirming the lessor’s sovereignty.
While on the one hand the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand the Republic of Cuba consents that during the period of occupation by the United States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and control over and within said areas with a right to acquire…for the public purposes of the United States any land over or other property therein by purchase or by exercise of eminent domain with full compensation to the owners thereof.
References(p. 209) The apparently perpetual character of the rights assigned by this clause has given rise to much commentary, a key issue being whether US constitutional rights protections extend to Guantanamo Bay.27
The difficulties concerning the nature of the grantor’s interest in this type of case, new examples of which are unlikely to arise, are not present in the amenity-providing ‘lease’ of railway station or a military, naval, or air base.28 Here the rights conferred by a treaty, executive agreement or other intergovernmental agreement are of a more limited kind: consequently the grantor has a right to revoke the ‘contractual licence’ (according to its terms) and, after a reasonable time has elapsed, proportionate steps (even, in the last resort, force) may be employed to evict the trespasser.
Restrictions on use of territory, accepted by treaty, do not affect territorial sovereignty as a title, even when the restriction concerns matters of national security and preparation for defence.29 The same applies where demilitarized zones have been imposed by the Security Council30 or even (in the context of provisional measures) by the International Court.31
As noted, a condominium involves a sovereignty jointly exercised by two (or more) states on a basis of equality. Historically, other types of shared sovereignty have occurred in which the dominant partner, state A, has acquired a significant role in the government of state B, and particularly in the taking of executive decisions relating to the conduct of foreign affairs. The legal aspects of the relationship will vary with the circumstances of each case, and not too much can be deduced from the terminology of the relevant instruments.32 It may be that the protected community or ‘state’ is aReferences(p. 210) part of state A and, as a colonial protectorate, has no international legal personality, although for purposes of internal law it may have a special status.33 The question of the status of colonial protectorates is complex and can only be approached on a case by case basis.34 The protected state may retain a measure of externally effective legal personality, although the exercise of its legal capacities be delegated to state A. In this latter case treaties by state A will not necessarily apply to state B. However, for certain purposes, including the law of neutrality and war, state B may be regarded as an agent of state A. Thus if state A declares war the protected state may be treated as belligerent also, although much will depend on the precise nature of the relations between states A and B.35 These questions, though they can still be important for the determination of the legal status of territory, pertain closely to the question of the independence of states, considered in chapter 5.