Ch:3 MODES OF ACQUIRING PROPERTY

Ch:3

 MODES OF ACQUIRING Territory For THE STATE 

Territory is one of the fundamental attributes of a State. The exercise of sovereignty is

predicated upon territory. With territory, the State could perform acts and be subject to duties

and limitations. Understanding the modes of acquiring territory by the State is crucial for law students, as it forms the basis of administrative and constitutional law.

1. What is State Territory?

State territory refers to the defined portion of the globe which is subjected to the sovereignty of a State.

A State's supreme authority within its territory is recognized under international law.

States are the most important players on the international stage as they are:

• Subjects of international law

• Principal law makers

• Law enforcers

 As such, it is vital to identify those legal personalities who have the capacity to be States.

Kinds of Territory

 Different Parts of State Territory 

The territory of a State consists of three main components: 

• Land territory:Includes the land, including its subsoil, within its boundaries (to this must be added national or internal waters consisting of lakes, canals and rivers and their mouths, ports, and harbours, sometimes waters landward of fringing islands, and some of its bays). 

• Maritime territory: Includes the territorial sea of a State

• Territorial air space: Includes the airspace above its land, its national or internal waters and its territorial sea. 

Nature of State : 

• The Montevideo Convention on the Rights and Duties of States is a treaty signed at Montevideo, Uruguay in 1933, during the Seventh International Conference of American States. 
• The Convention codifies the declarative theory of Statehood as accepted as part of customary international law.
•  Article 1 of the Montevideo Convention has expressly provided that the State as a person of international law should possess the following qualifications: 

a) permanent population;

b) a defined territory;

c) government; and

 d) capacity to enter into relations with the other states.

 

International Personality of a State -

 

A State must possess a personality in order to be recognized under international law as constituting a State. Besides, other members of the International Committee of State must recognize it as being a State.

 

Acquisition and Loss of Territory

3. Acquisition of Territory

a. Original 

i.Occupation

ii.Conquest/ Revolt

b. derivative

i.Annexation

By unilateral declaration

By the treat

ii. Accretion

iii. Prescription

iv.Cession

 •Cession by lease

•Cession with use of force

v. Award

Vi. Plebiscite

4. Loss of Territory

1. Cession
2. Subjugation
3. Revolt
4. Grant of Independence by Colonial Powers
5. Operation of Nature
6. Dereliction (relinquishment)
7. Vanishment (disappearance)

Derivative mode Annexation

The term annexation means forcible acquisition of Territory by one state at the expense of another.

Requisite of annexation-

• Annexing state should establish its sovereignty over the annexed territory.

• Element of force should be there.

There are certain modes of acquiring property by State, detai of These modes are As under...

1.  Discovery & Occupation
2.  Prescription
3. Conquest
4. Cession
5. Accretion

Discovery & Occupation

To be valid and effective, discovery must be accompanied by...

1. Occupation,

2. Management and 

3. Administration of the land discovered.

• It is the oldest mode of acquiring territory.

• Up to the 18th century, discovery alone was enough to establish a legal title.

•  Occupation, thus, implies the establishment of sovereignty over a territory not under the authority of any other State (terra nullius) whether newly discovered or abandoned by the State formerly in control (which is unlikely to occur).

Terra nullius means a land that is legally deemed to be unoccupied or uninhabited.

Prescription

It is the continued and uninterrupted occupation of territory for a long period of time by one State actually and originally belonging to another State.

• It differs from occupation.

•  Prescription is a mode of establishing title to territory which is subject to the sovereignty of another State (not terra nullius) through peaceful exercise of defacto sovereignty over a long period of time.

•  It is the legitimisation of a doubtful title by the passage of time and the presumed agreement of the former sovereignty. 

• It relates to territory which has previously been under the sovereignty of another State. It must be peaceful and uninterrupted in the sense that the former sovereign must consent to the new sovereign.

 

  Conquest

It is the acquisition of territory by the use of force, which reduces the vanquished territory into submission to the conquering State.

• This mode of acquiring territory is violative of the United Nations Charter as it involves the use of force.

•  The acquisition of territory through the use of force is outlawed by paragraph 4 of article 2 of the Charter of the United Nations, which obliged the member States to refrain from the use of force against the territorial integrity or political independence of any State.

 

 Cession

A bilateral agreement whereby one state transfers a definite portion of its territory over another State.

• Cession of territory may be voluntary as a result of

1.  a purchase, 
2. an exchange, 
3. a gift, 
4. a voluntary merger,
5.  or any other voluntary manner, 
6. or it may be made under compulsion

as a result of a war or any use of force against the ceding State.

Example:-

History provides a great number of examples of cession.

•  Examples of voluntary cession are ..

the United States’ purchase of Alaska from Russia in 1867, 

• the exchange of a portion of Bessarabia by Romania to Russia in exchange for Dobrudja in 1878,

•  the France’s gift of Venice to Italy in 1866, and the voluntary merger of the Republic of Texas into the United States in 1795. 

• Examples of cession as a result of a war are the cession to Germany by France of the region of Alsace- Lorraine in 1871,

• and the merger of Korea into Japan in 1910.

You may also look some historical events where cession is manifested.

 

Accretion

• It is a geographical process by which new land is formed mainly through natural causes and becomes attached to existing land. 

 Example:-

Examples of such a process are:

•  the creation of islands in a river mouth,

•  the drying up or the change in the course of a boundary river, 

• or the emerging of island after the eruption

of an under-sea volcano.

When the new land comes into being within the territory of a State, it forms part

of its territory, and this causes no problem. 

 Where a new territory is added, mainly through natural causes, to territory already

under the sovereignty of the acquiring State, the acquisition and title to this territory need no

formal act or assertion on part of the acquiring State.

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