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Two small, formerly uninhabited islets off the east coast of Territoria are the subject of the Sand and Coral islets Conflict. The two islands were under Territoria's authority until 1881, when they were leased to Volcania, a Pacific Ocean state. 2014 saw the emergence of the sovereignty debate following the discovery of sizable crude oil deposits off Coral Island's shore by Sunrise Corp. However, the state of Volcania insists that the island is a portion of its sovereign territory and is unwilling to relinquish control of it to the state of Territoria. This paper tries to find out if the state of Volcania has a valid title over both Coral Island and Sand Island.
Whether Volcania has valid title over both Coral Island and Sand Island
YES, Volcania has a valid title over both Sand and Coral Island.
Territoria claims that in the view of historical facts and based on international law, the two islands are part of their territory and that there should exist no issue on the sovereign territory that needs to be resolved between them and Volcania. However, the Volcania state can stand on the claims that the islands were terra nullius meaning land without sovereign when the state incorporated both the Coral Island and Sand Island into its territory. Hence they acquired sovereignty over the islands through occupation, one of the established modes of territorial acquisition.
According to Nasu and Rothwell (2014, p.55), there is no general agreement regarding how States acquire territory or how to assess the value of one state’s claim over another’s except using the rules that are solely governed by customary international law. There exist two interchanging terminologies surrounding territorial acquisition, these are sovereignty and ownership. International law acknowledges that a territory can be under the sovereignty of one State but under the ownership of another (Linderfalk, p.147). In this case, the Islands are under the ownership of Territoria but the sovereign of Volcania. The phrase acquisition of territory is usually defined, as the establishment of sovereignty over a given piece of land (Linderfalk, p.148).
International law has traditionally used the phrase modes of acquiring territory to imply the different means of acquiring territorial sovereignty. There exist five modes of acquiring territory which are occupation, prescription, cession, conquest, and accretion. The International case law of the 20th century converged the modes of occupation and prescription as the fundamentals acquiring territory. The laws have also organized the modes of territorial acquisition into two categories based on what kind of facts creates sovereignty. These categories are original and derivative titles. Occupation is the only original title, the others being derivative titles. This distinction has traditionally been relevant since the legitimacy of a derivative title will always depend on the legitimacy of the previous titleholder’s claim, while this is not the case with original titles.
Occupation as an original mode of territorial acquisition is highly relevant since all claimants in the Sand and Coral Islands dispute can argue that their sovereignty is primarily based on this mode. According to Linderfalk (2011, p.151) occupation refers to a peaceful territorial acquisition. It can also be defined as the appropriation of territory by one state which is not at the time subject to the sovereignty of any other state. Rules regarding how States acquire territory through occupation first appear during the very late 15th century and they remained important during the first half of the 16th century, although during this time they were not sufficient by themselves to establish sovereignty, they had to be accompanied by an actual discovery of the territory falling under the realm of the grant in order to establish sovereignty. There were debates on whether territories, inhabited by indigenous populations, should be considered as terra nullius and therefore available for occupation by other populations. However, in the Sand and Coral Islands occupation could be raised by the Volcanic state under the circumstances that there was no indigenous population who had already possessed sovereignty and hence they can claim the sovereign territory of the islands.
The Territoria state had only done visual discovery of the island before the 1881 and they established sovereignty over the islands without considering whether other states had similar visual discovery. In addition, Territoria state practice in relation to the prerequisites of occupation during this time appears to have been rather contradictory. Because of this, a conservative interpretation is reasonable and such an interpretation leads to the conclusion that mere visual discovery of the two Islands previously unknown territories were not enough to constitute a title.
Visual discovery only creates an immature title, which needs to be coupled with some kind of formal acts within a reasonable time to establish sovereignty. The Territoria state needed conventional acts such as planting of flags or crosses on the territory or reading of a declaration upon return from the discovery. To include the relevant territory in the state’s administrative records were also used and sometimes accepted as formal acts granting sovereignty. According to Nasu and Rothwell (2014, p.59), the requirements regarding occupation increased during the 19th century when the concept of effective occupation emerged under the international law. The prerequisites of effective occupation during the 19th century focused largely on taking physical possession of land by settlement or use of territory by other means and to the exclusion of other states. The Volcania state satisfies this requirement as its people had settled in the Islands without interference from the state of Territoria.
In the 20th century, effective occupation was shifted from physical possession to placing emphasis on the manifestation of State functions. This requirement is still relevant today and it defines effective occupation as the genuine, peaceful, and continuous display of State functions in regard to the territory and it demands both the will of the State to possess (animus occupandi) and effective possession (corpus occupandi) (Nasu and Rothwell, p.60-62). The effective possession requirement relates to administrative, legislative, and judicial functions and the extent of the effectiveness required depends on the territory in question, its size, and location, whether it is inhabited or not and whether there are other states with competing claims. Other acts that can be considered in establishing a display of State sovereignty are military activities, police surveillance, and naval patrols. The state of Volcania had established a military training base on Sand Island. Linderfalk (2011, p.158) stresses that actual, continuous and peaceful display of State functions in regard to the territory are the only requirements of effective occupation. International law does not stipulate any additional rules regarding the actual incorporation.
The other mode of territorial acquisition that is effective in this case is cession. Cession is relevant since Territoria ceded the islands to Volcania through the leasing treaty of 1881. This mode is straight forward since it is a voluntary bilateral transaction wherein sovereignty is transferred between the two sovereigns. International law defines cession as a peaceful transfer.
Whether Territoria has violated Volcania’s sovereign rights in entering into a PPP with Sunrise Corp.
Yes, Territoria violated the sovereign rights of Volcania state.
The state of Volcania had exercised administrative, legislative, and judicial functions over the Islands and therefore they had already gained sovereign over the islands. Another factor that strengthens the Volcania claim of the sovereign over the islands is the lack of official Territoria protest after the expiry of the lease contract in 1906.
Linderfalk, Ulf. "The Application of International Legal Norms over Time: The Second Branch of Intertemporal Law." Netherlands International Law Review. 58.2 (2011): 147-172. Print.
Nasu, H, and D.R Rothwell. "Re-evaluating the Role of International Law in Territorial and Maritime Disputes in East Asia." Asian Journal of International Law. 4.1 (2014): 55-79. Print.
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