Territories in International Law: Post-Colonial Era

Introduction

Territory is highly considered to be among the fundamentals and major elements of statehood which, at the same time, was highly regarded in international law. Though formal international law came lately, the act of inter-state relations, interactions and agreements date back from the ancient civilizations. And the conventional international law on territory do not undermine the significant contribution of culture, tradition and historical background in the legislation of laws. According to Shaw (2008), a barrister professor, law is something that binds the adherents of the society or any community together on the grounds of their adherence to recognised values and standards. He quoted that “law consists of a series of rules regulating behaviour, and reflecting, to some extent, the ideas and preoccupations of the society within which it functions” (p.1).

Someone might ask, “What is the territorial state?”, Taylor (1985) as cited in Ypi (2010) defined ‘territory’ as a term derived from a combined word ‘terra’ and ‘torium’ which means- when combined- ‘a land belonging to’. The aforementioned definition of territorial state provides an organic idea that it refers to land ownership. But territorial ownership is not absolute, Brilmayer (1992) as cited in Ypi (2010) pointed out that a territory is highly contested from within, like separatist and autonomist movements from the states itself, and from the external elements like the aggressive foreign states or the non-state actors. Without international law, such actions might lead into violence, destruction and will stay unresolved.

On the other hand, international law, in a classical definition, as stated by Shaw (2019) — in Encyclopedia Britannica — is also called public international law or law of nations. It also constitutes the set of legal rules, norms, and standards that are put in between sovereign nations and other entities that are legally recognized as international actors.

However, in the contemporary era, international law was best defined as:

a rapidly developing complex of rules and influential — though not directly binding — principles, practices, and assertions coupled with increasingly sophisticated structures and processes. In its broadest sense, international law provides normative guidelines as well as methods, mechanisms, and a common conceptual language to international actors — i.e., primarily sovereign states but also increasingly international organizations and some individuals (Shaw, 2019, n.p.).

He added that ‘individuals’ and ‘international organizations’ act unilaterally as the most dynamic and vital elements of modern international law. It is also a self-sufficient system of law that acts independently far from the legal orders of domestic or municipal laws of certain states. Upon the rapid world developments in both science and technology, the sense of humanity grows in parallel with it, thus the question arises, what’s the role and contribution of these advancements in the settling of the modern territorial disputes? How did the international court rule over the contemporary territorial disputes? Hence, to examine the so-called modern-day territorial disputes, foundation of title to territory must be explained, sources of legal evidences must be provided, and contemporary cases should be analysed.

Relevance and Scope

Territorial claims have always been among the major roots of conflicts hundred years back up until today. Most, but not all the international personalities, individuals and entities pledged to be part and cooperate under the jurisdiction of international law. Similar to many political sectors, international law also groups and divides cases according to what sphere it belongs, whether ‘private international law’ or under the ‘public international law’. The former deals with the issues of private entities like corporations, while the latter concerns about the relationship and interactions between states. And despite the developments achieved by the world today, more specifically in the human and social interaction, there are still a number of cases of territorial disputes around the world.

The concept of ‘Territory’ in the international arena is a complex topic, therefore, this study will try to narrow the scope of agenda for clearer view and gives easier comprehension. In addition, it will provide and portray the significance of the topic in the International politics and community with much more emphasis on the post-colonial era. Furthermore, this research will try to cover topics and issues about ‘Territory’ in International Law and will focus on contemporary cases that involve territorial disputes between states. The study on the concept of territory in international law will fall under the public international law by the mere fact that it deals with the relationship between states.

International treaties, conventions and tribunals are highly regarded and had gained much more respect from the international personalities. Despite of the growing recognition international law is gaining, there are still a number of countries who decline to join certain treaties, conventions and tribunals due to their national interest and/or politicians’ interests, and since international law was built in the nature of democracy, each state is given an equal rights to join or not. In relation with this, there had been numbers of international treaties, convention, and tribunals done diplomatically to strengthen ties, resolve various disputes and to prevent countries from engaging in a more violent scenario.

Foundations of Title to Territory

Territory will not be as relevant as it is without the concept of ‘title’, and this concept in international law is used to justify that a particular territory is under control and belongs to a state. The significant role of territorial control in international law can’t be denied as it plays as an essential element and among the fundamentals of territorial legitimacy. According to Huh (2015), title to territory is clearly defined as ‘a vestitive fact of territorial sovereignty’ which means a determiner that can be either positive or negative that either establishes or terminates or transfers rights. He added that a state having the said title is bestowed with sovereignty which at the same time is disputable. As mentioned in Shaw’s (2008) book, the international court noted in the Burkina Faso/Republic of Mali case in 1986, the term ‘title’ represents both the evidence which may set up the existence of the right and the actual source of that right.

Legally justified control over territory by a state is the one with a ‘title’ to a certain territory and the other states must recognize and respect the matter, while on the other hand, a state without a ‘title’ to a claimed territory won’t have a legitimate territorial control. However, ‘vestitive fact’ itself constitutes an ambiguous definition on what facts can be used that establish a right. (Huh, 2015) (Ypi, 2012). From the works done by many political scholars, Malcolm Shaw’s study stands out by having the most appropriate and rational point in his five forms of title acquisition: occupation, prescription, accession, cession and subjugation (2008). Furthermore, in the case of the Palmas, an ‘an act of effective apprehension’ was found and Judge Huber, a judge and lawyer, (Lathrop, 2008) therefore declared that the content of title as ‘the continuous and peaceful display of territorial sovereignty’ and became the reference of the following territorial disputes cases specially in South Asia. This was also called and regarded as modern law of territory.

Evidences

When it comes to territorial disputes and international law, especially when it goes under the rule of international court and tribunals, the major question to identify which state would get the probable triumph is whether which one has the stronger and valid evidence. What is needed to dominate the table and win against the rival state?

In the contemporary rulings and fact-finding in the international tribunals, the actual practice, as stated by McHugo (1998), old cases with disintegrating evidence are given less importance by the mere fact that old dispute will not be conducive to stability.

In the late 20th century, the Dubai/Sharjah territorial dispute was put forward in the international tribunal. It must be kept in mind that claims aren’t enough, instead, all possible evidence that shows exercise of control over a particular territory must be gathered and presented. McHugo (1998) clarified that there is no such thing as absolute title, thus, a disputing state must provide more valid and stronger grounds than its opponent. This particular case, Dubai/Sharjah, was luckily taken place before it reached its critical date, thus granting certain land, desert areas to Sharjah, and not to Dubai by referring to the allegiance of the Bani Qitab tribe to Sharjah. Scholars said that the decision made might not be the same if it was done after the critical date by the mere fact that if it was not held before 1998, both parties need to present more recent evidence like constructions, establishments, grants of lands and government activities within the subject area.

McHugo (1998) classified the major sources of evidence accordingly. He started with the United Nations, then the previous case records in the Security Council and the General Assembly, along with the relevant committees and a particular area in law can also be used as a legal basis. Government archives, private archives, maps and the experts carry an undeniably significant weight in the court and tribunal. Furthermore, evidence should focus and has to be in accordance with the conduct of the parties, sovereignty and control. It is preferable to be specific, and well supported by strong and valid documentation.

Case Study [ Conceptualization ]

In the modern landscape of modern International Law, territorial dispute or sometimes called boundary dispute do occur even after the sovereign states were granted independence. Territorial or boundary disputes are truly lethal if the sovereign states do not tackle the problem wisely as it would be a serious threat to international peace. As per declared in the Montevideo Convention on the Rights and Duties of States in Article 1 on the declarative theory of statehood that “a person of international law should possess the following qualifications: (a) permanent population; (b) a defined territory; © a government; and (d) capacity to enter into relations with other states”(Lauterpacht, 2012). Jennings and Watt (1992) described that this also indicates that without a defined territory, a legal person cannot be claimed as a sovereign state. Furthermore, territorial sovereignty possesses both positive and negative connotations. The former convey the exclusivity of the state’s ability upon its own territory matters which means when a state has title to a certain territory, the state’s control over the said territory is justified legally and the latter emanate the gist of the responsibility to protect the right of other states (Shaw, 2017). Thus, it is not a foreign matter in international law. Hence, we will bring up several relatable cases regarding territorial disputes that have been resolved by the ICJ for a clearer explanation and might as well highlight the differences in the cases.

a. Contemporary cases of Territorial disputes

i. Pedra Branca / Pulau Batu Puteh

One of the most controversial and political territorial disputes occurred between Malaysia and Singapore was the claim of sovereignty over Pedra Branca (or formerly called as Pulau Batu Puteh by Malaysia). The dispute started in 1979 when the Director of National Mapping of Malaysia released a map which includes Pedra Branca as a part of the Malaysian territory. In response to the controversial map, Singapore asked Malaysian government to “correct” the map through a diplomatic note on February 18, 1980 (The ICJ, 2008). Later, in 1989 Singapore proposed to resolve the case by submitting it to the ICJ and in 1994 Malaysia agreed to submit the case and in 1998 the Court notified the case (Huh, 2015).

During the case hearing, Singapore protested claiming that Pedra Branca was terra nullius or simply meaning as “land that belongs to no one / nobody’s island” in 1847. However, Malaysia denied Singapore’s argument by claiming that Pulau Batu Puteh (Pedra Branca) was not terra nullius and stated that its original title belonged to the old Johor Sultanate. Singapore explained that the Johor Sultanate never claimed nor exercised its authority upon Pedra Branca in the period of 1512 until 1641 which the period also marked the collapse of Malacca Sultanate to the Portuguese power and added that there was no evidence of Johor’s authority even at the peak of Johor’s golden era between 1641 and 1699. According to Singapore, a year after the 1891 Anglo-Dutch treaty, which has divided the Singapore Strait, where Pedra Branca is located, the two heirs of Sultan Mahmud Shah III made an agreement. The letter that was sent by Abdul Rahman, which was recognized by the Dutch, to his brother Hussein, was recognized by the British. The gist of the letter stated that whatever remains on the mainland or Malay Peninsula belongs to Hussein (“How ICJ arrived at its decision”, 2008). Hence, Singapore assumed that the Johor Sultanate had never retained its sovereignty over the islands. The Court later rejected these claims (Huh, 2015).

Later, Singapore contested by presenting the evidence claiming that Pedra Branca is a “dependency of Singapore” under the ruling of the United Kingdom. Rooting from the basis of existence of Horsburgh Lighthouse which was built on the island of Pedra Branca by its predecessor, the United Kingdom, gained title through legal principles over the island. The United Kingdom has portrayed its exercise of authority constantly since 1847 through its action and roles (Huh, 2015). Although after leaving Malaysia on August 9, 1965, Malaysia had taken no action towards Singapore’s activities and exercise of authority without having to seek Malaysia’s approval at the island. Pedra Branca acted as à titre de souverain by Singaporean government without any objection from Malaysia while making visits to the island and investigating few shipwrecks around the island (“‘Glaring gap’ in Malaysia’s action over two islands”, 2007). According to Shaw (2017), he mentioned that most cases involving claims by states where both parties might have exercised certain sovereign acts.54 Singapore defended that the Malaysia map published in 1962, 1965, 1970, 1974 and 1975 by both of the Malayan and Malaysian Surveyor General and Director of General Mapping illustrated Pedra Branca under the name of “SINGAPORE” or “SINGAPURA” along with the islands that are undeniably under the sovereignty of Singapore such as Pulau Sentosa. On May 23, 2008, The ICJ finally released the decision of the Court by having 12 votes to four that Singapore held its Sovereignty over Pedra Branca (The ICJ, 2008). However, the Court still recognized the original title belonged to the Johor Sultanate in response to the initial claim by Singapore that the island was terra nullius (Huh, 2015).

ii. Ligitan and Sipadan dispute

The Ligitan and Sipadan dispute initially occurred among two countries namely, Malaysia and Indonesia in the year of 1969 but later escalated immensely in 1991 when Indonesia revealed that Malaysia built some facilities for tourism purpose on Sipadan. Indonesia believed that they possessed the sovereignty over both islands of Ligitan and Sipadan via a verbal agreement made with neighbouring country, Malaysia over the sovereignty of both claimed islands. Malaysia denied the claim of the verbal agreement allegation made by Indonesia and emphasized that both Ligitan and Sipadan have always been under the sovereignty of Malaysia. In 1998, both conflicted countries decided to bring this matter to be resolved within the jurisdiction of the ICJ.

Both Malaysia and Indonesia claimed that Ligitan and Sipadan islands are not terrae nullius but the allegation of its predecessor were at variance (The ICJ, 2002). Just like the Pedra Branca dispute, Indonesia stated that the Ligitan and Sipadan dispute was highly related to the 1891 Anglo-Dutch treaty concerning the spheres of influence between the British Empire and the Dutch (Haller-Trost,1995). Meanwhile, Malaysia rejected by mentioning that the Anglo-Dutch treaty did not specify on the maritime features of the islands and added that the original title of both Ligitan and Sipadan belonged to the Sulu Sultanate which later followed by a series of title transfers from numerous powers such as Spain, the United States and the United Kingdom. However, after observing all the relevant documents presented by both countries, the Court could not provide the answer over the question regarding the islands’ original title and the Court resorted to principle of effectivités which the activities and authority practiced related to the island (The ICJ, 2002).

This is merely because after examining the documents provided from both parties immaculately, the Court prevailed that the islands did not lie within the property of the Sulu Sultanate and there was no evidence that the Sultan of Sulu ever exercised his power and authority over those two islands (Huh, 2015). In regards to Indonesia’s claim, the Anglo-Dutch treaty had never included the two islands in their agreement which resulted in the original title remained unclear. Indonesia released a map “Search and Patrol Area of Lumba-Lumba” in which Ligitan and Sipadan were not included as a part of Indonesian territory while venturing in a bilateral agreement concerning naval liaisons with the Philippines in the Celebes Sea in 1960 (Haller-Trost, 1995). The Court later concluded that Malaysia possesses the title to Ligitan and Sipadan based on the exercise of authority that Malaysia had conducted upon the two claimed islands based on Malaysia’s à titre de souverain intention through the activities of turtle egg harvesting and bird sanctuary without having any argument with Indonesia (Huh, 2015).

Conclusion

To conclude, the process examining a piece of land’s original title is vital in determining its very own sovereignty. However, this could not be the only resolution. Other matters might have to be taken into further consideration such as the practice of authority or sovereignty over the said land by other parties or one might also call it as à titre de souverain as per clarified in both mentioned cases. The Court might have to determine the process of establishing statehood and may have to examine for a pattern of territorial governance that has been practiced by the conflicted parties, the European system might not be in accord to which the traditional law of territory is located. A thorough and immaculate research and observation is needed in order to ensure whether the said state deserves title to such land.

Pre-colonial rulings on territory in international law may have several notable differences from the conventional one, but the recent cases of territorial disputes like Pedra Branca and Ligitan/Sipadan did not totally junk the judgments in the pre-colonial era especially in the concepts of original title, effectivites and terra nullius though less powerful than before and with ‘a constitutive element’. On the other hand, albeit not absolute, historical control like ‘Royal Control’ or Sultanate’s sovereign land which was a strong legal basis back then but it became less emphasized and irrelevant in today’s rulings like the case of Ligitan/Sipadan. Nevertheless, as Kohen expressed, “recognitions of original title without examining territorial control are fragile”.

Evidences in territorial disputes were the spears and shields in the international law arena. However, a strong legal basis before may not have an equal significance in todays rulings, if not totally rejected. The questions of whether the modern human developments have a contribution or not is quite arguable, but referring to the abovementioned cases, it has no significant role. While the matter on international courts’ rulings shows that it emphasizes more on the conventional judgments. Nonetheless, precedented decision on territorial disputes aren’t absolute nor rigid, it is always bound to changes and developments considering the facts, evidences, time and place. After all, countries who agreed to undergo international court ruling must obey and respect whatever the decision might be.

References

‘Glaring gap’ in Malaysia’s action over two islands (2007, November 9). The Straits Times. Retrieved from https://web.archive.org/web/20160124020310/http://www.malaysianbar.org.my/index2.php?option=com_content&do_pdf=1&id=12124

Haller-Trost, R. (1995). The Territorial Dispute between Indonesia and Malaysia over Pulau Sipadan and Pulau Ligitan in the Celebes Sea: A Study in International Law

How ICJ arrived at its decision (2008, May 24). The Straits Times. Retrieved from https://www.asiaone.com/News/Latest%2BNews/Story/A1Story20080528-67522.html

Huh, S. (2015). Title to Territory in the Post-Colonial Era: Original Title and Terra Nullius in the ICJ Judgments on Cases Concerning Ligitan/Sipadan (2002) and Pedra Branca (2008). London: Oxford University Press.

Lathrop, C. (23 May, 2008). Sovereignty over Pedra Branca/Pulau Batu. American Journal of International Law, 102(4). doi:10.2307/20456682

McHugo, J., & Schofield, C. (1998). How to Prove Title to Territory: A Brief, Practical Introduction to the Law and Evidence. Durham: International Boundaries Research Unit.

Shaw, M. (2019). International law. Retrieved from https://www.britannica.com/topic/international-law.

Shaw, M. N. (2008). International law. Cambridge, UK: Cambridge University Press.

Shaw, M. (2017). International Law. Cambridge, UK: Cambridge University Press

The International Court of Justice. (2002, December 17). Sovereignty over Pulau Ligitan and Pulau Sipadan [Press release]. Retrieved from http://www.icj-cij.org/presscom/index.php?pr=343&pt=1&p1=6&p2=1

Ypi, L. (2012). A Permissive Theory of Territprial Rights. European Journal of Philosophy, 22(3), 288–312. doi:10.1111/j.1468–0378.2011.00506.x