Free Custom «Modes of Acquiring Territory» Essay Paper

Traditional international law asserts several modes of acquiring territory as cession, occupation, prescription, accretion, and conquest.

Cession refers to the transfer of a territory to another state by an agreement or treaty. Traditional international law asserts that a state can acquire sovereignty over another territory in cases where that sovereignty is ceded effectively through agreement or a treaty. It is vital for the state to consult the inhabitants of a territory before ceding sovereignty over it. Consultations are vital because they enhance the legality of territorial acquisition. Cession may be effected through a referendum where inhabitants vote to decide their future.

Another significant mode of acquiring sovereignty is effective occupation. According to the traditional international law, occupation is the effective control of a territory exercised by a power that has no sovereign title to the land through either defiance or absence of a proper sovereign. It is worth noting that taking possession of a particular territory is a tangible reason to satisfy occupation and control of that territory. Possession is always taken through an act or a series of acts through which the occupying state takes effective control of the territory with the exclusion of others terra nullis.

 

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Prescription is also a vital mode of acquiring a territory under the traditional international law. The traditional international law asserts that prescription is closely related to lawful occupation, and it entails the actual exercise of sovereignty over a territory. Prescription is always assumed to have been effected over a particular period without any objection from other states. This implies that the controlling sovereign state would hold the territory as one of its own and the law would recognize it. The law requires that the possession of a particular territory should be peaceful enough for it to be recognized. It would be rejected in cases where it involves armed conflict.

Accretion also abounds as another mode of acquiring a territory under the traditional international law. Notably, accretion involves the effect of natural forces such as volcanism. For instance, in cases where natural activities such as volcanism takes place and volcanic islands emerge in a state’s territorial waters, it would have the right to acquire territory. A state would acquire a territory formed by natural activities or the one that expands from land due to natural activities. Therefore, it may establish its control of the territory.

The last vital mode of acquisition of a territory is conquest. Conquest refers to the acquisition of a territory using force. It involves armed attacks to the territory hence bringing it under the control of a state in a forceful manner. It was historically a recognized as a legal method of acquiring sovereignty. With changes in international law, the mode has become illegal, and it is not recognized any further as the United Nations promotes peaceful negations between all countries all over the globe. The new terms require states to follow the required procedure to be allowed a territory.

Requirements for Diplomatic Protection

The customary international law emphases on two key requirements that must be met by states requiring diplomatic protection. The two key requirements for diplomatic protection include the exhaustion of local remedies and effective and continuous nationality. These requirements were asserted during the Vienna Convention of Diplomatic Relations on 18 April 1961.

It is vital to note that the requirement on the exhaustion of local remedies guarantees that the national in question gives the host state a chance to correct the wrong done to him through its available national remedies. It would be difficult for international law to guarantee diplomatic protection to nationals who do not allow their host countries the opportunity to correct the wrongs done to them through the available remedies. The refusal to allow the host country is an indication of non-compliance to the procedures laid down by the international law hence denying the individuals diplomatic protection. In line with the requirement of the exhaustion of local remedies, the individual in question must first pursue the actions of the host state in the existing local courts before proceeding to higher levels. One has to first adhere to the court procedures in the host state before taking the matter to the state of his nationality. One’s state would only take the claims validly in cases where the national has followed the required procedure. Otherwise, this may be termed as ineffective exhaustion of local remedies and would make it difficult for the individual to be offered diplomatic protection. Therefore, the requirement on the exhaustion of local remedies must be upheld effectively for diplomatic protection to be provided to the aggrieved nationals of other countries.

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Effective and continuous nationality is another vital requirement for diplomatic protection. This requirement reiterates that the wronged individual must uphold the nationality of the espousing state from the time when the injury is suffered until the time when the claim is presented through diplomatic espousal by his state. This requirement demands the aggrieved party to indicate effective and continuous nationality to the state of origin. In cases where the individual in question changes his nationality, the state of his former nationality will not be able to espouse his claims validly. This is because the individual does not uphold effective and continuous nationality to the country and may be deemed to be out of the country’s records. More so, any claim seeking diplomatic protection for a national would be rendered inadmissible in cases where it is discovered that there is no connection between the individual and the espousing state. The key example of this instance is International Court of Justice in the Nottenbohm case where there was no effective connection between the state and the national hence rendering the entire claim inadmissible. In line with this requirement, individuals moving to settle in other countries must decide whether to maintain their nationality or acquire the nationality of the host countries. Effective identification with a particular state would assist them access diplomatic protection.

Maritime Zoning under the 1982 Convention on the Law of the Sea

The Convention on the Law of the Sea defines the rights and responsibilities of different countries in the utilization of world oceans and seas, the environment, establishing guidelines for business through seas and oceans, and the management of marine natural resources. The Convention was concluded in 1982 and effectively replaced four 1958 treaties. The 1982 Convention on the Law of the Sea was fair enough, as it entailed the use of consensus in reaching different agreement pertaining to the utilization of oceans and seas by different countries. The use of consensus was aimed at eliminating the domination of the negotiations by a particular group of countries especially those with strong economies.

Notably, the 1982 Convention on the Law of the Sea introduced a number of provisions that countries are supposed to observe. The key issue covered under the 1982 Convention include navigation, setting limits, archipelagic status and transit regimes, continental shelf jurisdiction, exclusive economic zones (EEZ), protection of the marine environment, deep seabed mining,  scientific research, the exploitation regime, and the settlement of disputes involving oceans and seas. The 1982 Convention also played a significant role in setting the limit for various areas that were measured carefully from a particular baseline. Some of the key areas that involved the setting of limits include internal waters, territorial waters, the contiguous zone, the continental shelf, and archipelagic waters.

Internal waters entail all water and waterways on the landward side of the baseline. This implies that the country has the authority to set effective laws relating to its use and protection. Other countries do not have a right to pass within internal waters.

Concerning territorial waters, the 1982 Convention held that the coastal state is free to set laws and regulate the usage of its waters out of 12 nautical miles from the baseline. The Convention gave vessels the right of innocent passage across any territorial waters, and it contains strategic traits, which allow the passage of military craft as transit passage.

In relation to archipelagic waters, Archipelagic States were defined in Part IV. Therefore, the Convention recognized archipelagic waters as those involving the drawing of a baseline between the outermost points of the outermost islands as long as these points are close to one another.

The Contiguous zone was defined as that involving a further 12 nautical miles from the territorial sea limit. Therefore, a coastal state can continue enforcing laws in four specific areas, which include taxation, customs, pollution, and immigration in cases where the infringement began from the territorial waters of the state.

Exclusive economic zones (EEZ) are those that extend from the edge of the territorial sea to 200 nautical miles from the baseline. All the natural resources found in this area are a sole possession of the coastal nation. These were introduced to stop heightened clashes involving fishing and oil mining.

The continental shelf is the natural prolongation of land territory to the outer edge of the continental margin. The law provides that the continental shelf may be over 200 nautical miles, but should not extend 350 nautical miles. Coastal states have exclusive rights to resources on the continental shelf.    

Sources of International Law

International custom, general principles, and judicial decision and juristic writings are the key sources of international law.

Article 38 of the ICJ Statute brings international custom out clearly as a source of international law. The International custom source emphasizes on state practice and effective acceptance of this practice as an obligation. It emanates from the consistent practice of state and is backed up by opino juris, which is a commitment to the obligations of the customs. This source of international law focuses mainly on what state do as a custom. The practices upheld by states must be recognized internationally, and states must commit to the legality of such practices commonly referred to as opino juris. A preemptory norm also referred to as jus cogens is also an aspect of international customs and outlines internationally recognized practices that may be referred to as crimes. For instance, it points out crimes against humanity, piracy, genocide, war, and war crimes as unacceptable forms of practice.

Treaties of law also form a significant source of international law. Article 38 of the ICJ Statute defines treaties as contractual obligations that each country is to follow. However, the Article also acknowledges the possibility of a state accepting expressly obligations to which it is not a party. The effectiveness of treaties as a source of international law depends on the number of countries around the globe that agree toward particular obligations. Countries that agree to particular treaties that are discussed would automatically be subject to international laws applied to such treaties. For instance, countries in the International Criminal Court’s treat have to ensure they follow all the provisions that are stated because of their ratification of such obligations. Treatise bind different nations together hence ensuring they are subject to a particular law that governs their operations significantly.

The last source of international law is the general principles of the law. General principles as defined under Article 38 may refer to legal principles, which are common to a large number of municipal law systems. Legal principles are always aimed at filling any gaps witnessed in both treaties and international customs. This implies that it supplements the other two sources of law by ensuring effective principles of law are upheld by all national around the world. General principles of estoppel and equity are the common ones that are applied in the use of general principles around different countries of the world.