PUBLIC INTERNATIONAL LAW

UNIT 5

The Concept of Statehood in International Law

In common language, the word "state" can refer either to a country—like India or Brazil—or
to a sub-national division, such as Maharashtra in India or Texas in the United States.
However, in the realm of international law, the term State has a far more specific and
technical meaning. States are the primary subjects of international law, possessing
international personality and a set of rights and duties that allow them to interact within the
global legal system. They are the main actors that can enter into treaties, claim sovereignty,
establish diplomatic relations, and bring or defend cases before international courts.
Definition and Legal Framework
The modern definition of a State in international law is rooted in the Montevideo Convention
on the Rights and Duties of States, 1933. While this treaty was originally signed by states of
the Americas, the criteria it outlines are now widely regarded as reflecting customary
international law—meaning they are accepted as legal standards by the global community,
even in the absence of formal treaty obligations.
According to Article 1 of the Montevideo Convention, an entity must satisfy four essential
criteria to qualify as a State under international law:
1. A permanent population
2. A defined territory
3. A government
4. The capacity to enter into relations with other States
Because these requirements are considered part of customary international law, they are
binding on all members of the international community, regardless of whether they have
signed or ratified the Montevideo Convention itself.

Conditions of Statehood
1. Permanent Population
The first requirement for statehood is the existence of a permanent population. This means a
stable community of people residing in the State on a continuous basis. The population does
not need to be large, but it must be permanent and not merely transient. These individuals
form the core of the State's legal and political identity and are subject to its authority.
2. Defined Territory
A State must also possess a defined territory over which it exercises effective control.
Absolute clarity or the absence of border disputes is not required; many recognized States
have ongoing territorial disagreements. However, there must be a specific geographical area
where the State exercises sovereignty and authority.
3. Government
A functioning government is crucial for the existence of a State. The government must be
capable of maintaining internal order, administering public affairs, enforcing laws, and
representing the State in its dealings with other States. It is through the government that a
State performs its obligations and asserts its sovereignty.
4. Capacity to Enter into Relations with Other States
To qualify as a State, the entity must also have the ability to engage in formal international
relations. This includes signing treaties, forming diplomatic relationships, and participating in
international organizations. The entity must act independently on the global stage and not be
under the legal authority of another State.

Customary International Law and Legal Status

The Montevideo criteria are not merely theoretical—they are accepted as part of customary
international law, meaning they are regarded as binding even on States that have not
expressly agreed to them by treaty. Customary international law develops from consistent and
general practice among States followed out of a sense of legal obligation (opinio juris). The
criteria for statehood have met this standard through widespread acceptance and usage in
diplomatic recognition, international adjudication, and scholarly analysis.
Thus, the legal status of statehood is not just a matter of opinion or political recognition, but
is grounded in well-established legal principles that have become part of customary
international law. This provides a neutral and objective framework for determining whether
an entity should be regarded as a State, regardless of political or strategic interests.

Recognition and Statehood

Although satisfying the Montevideo criteria is the core legal requirement for statehood, the
issue of recognition by other States can still affect practical realities. Recognition, especially
by major powers or international organizations like the United Nations, often determines
whether a State can effectively participate in global affairs. However, under international law,
recognition is not a requirement for statehood if the four essential elements are met.
For example, Taiwan possesses a permanent population, defined territory, an effective
government, and the capacity to enter into international relations—yet its statehood is
disputed due to political pressure, primarily from China. Similarly, Kosovo and Palestine
fulfill many of the legal requirements for statehood, yet their recognition remains politically
divided.

Theories of Recognition in International Law

The concept of recognition in international law plays a pivotal role in determining the legal
status and participation of emerging or contested States. Recognition refers to the formal
acknowledgment by existing States that a new entity qualifies as a State under international
law. However, there has been long-standing debate about whether recognition merely affirms
an existing status or whether it creates statehood. This debate has given rise to two primary
theories: the Declaratory Theory and the Constitutive Theory. Over time, practice has evolved
to reflect a middle-ground approach, influenced by both legal principles and political
considerations.

Declaratory Theory of Recognition

The Declaratory Theory asserts that recognition is a formal acknowledgment of a State’s
existing legal status, not the basis of that status. In this view, once an entity satisfies the legal
criteria of statehood—namely, those outlined in the Montevideo Convention of 1933
(permanent population, defined territory, government, and capacity to conduct international
relations)—it automatically becomes a State in the eyes of international law, regardless of
whether it is recognized by others.
Core Principles
 Recognition is declarative, not constitutive; it merely acknowledges a legal fact.
 A State exists independently of recognition if it meets the Montevideo criteria.
 Recognition does not affect the existence or legitimacy of a State under international
law.
Legal Support
Leading scholars like Ian Brownlie and James Crawford support this theory. The Tinoco
Arbitration (1923) further strengthens the theory, where it was held that the lack of
recognition by other States did not affect the validity of the Tinoco government’s actions, as
long as the internal criteria of statehood were met.

Examples from State Practice

  Bangladesh (1971): Although politically controversial, it was recognized after it had
established effective control and met the Montevideo requirements.
 South Sudan (2011): Gained statehood after a referendum and fulfilling statehood
criteria; recognition followed rather than created its statehood.
 Taiwan: Has all elements of statehood per Montevideo Convention but is not widely
recognized, particularly due to the "One China Policy." Despite this, it engages in
diplomacy, trade, and governance independently.
This theory aligns closely with customary international law, asserting that legal statehood
derives from objective facts rather than subjective political will.

Constitutive Theory of Recognition

In contrast, the Constitutive Theory holds that an entity becomes a State only when it is
recognized as such by other States. In this view, recognition is not just political but has legal
consequences—it grants international personality and legal capacity.
Core Principles
 Statehood is created through recognition.
 Without recognition, an entity does not possess full international legal personality.
 The theory has its roots in 19th-century European legal thought, and was endorsed by
thinkers like Georg Wilhelm Friedrich Hegel and L. Oppenheim.
Examples from State Practice
 Palestine: Recognized by over 140 countries but not universally, and not a full UN
member. Recognition by many supports its statehood, but lack of universal consensus
and vetoes at the UN hinder full international participation.
 Kosovo: Recognized by many Western countries, but not by others including Serbia,
Russia, and China. Its statehood remains contested, affecting its ability to join
international organizations.
 Turkish Republic of Northern Cyprus (TRNC): Recognized only by Turkey, and not
considered a State by the broader international community, demonstrating how lack of
recognition can limit international status under this theory.
While still cited in some legal and diplomatic contexts, the constitutive theory has been
increasingly criticized for making statehood dependent on political acceptance rather than
legal fact.

Middle-Ground Approach: Practical Synthesis

In practice, international law often reflects a synthesis of both theories. This middle-ground
approach acknowledges that while legal statehood depends on fulfilling objective criteria
(declaratory theory), recognition by other States has significant practical and political
consequences.
Key Features
 Recognition may indicate that a State has met international legal criteria, but is also
often influenced by political alignment or strategic interests.
 Recognition is sometimes conditional, depending on the recognizing State’s
interpretation of facts or values.
 The post-Cold War recognition of former Soviet republics and Yugoslav states
demonstrates this pragmatic combination of legal evaluation and political recognition.

Political Considerations in Recognition

Recognition is frequently used as a political tool. States may grant or withhold recognition
based on strategic interests, ideological alignment, or geopolitical pressures. For instance:
 During the Cold War, the United States withheld recognition from Communist China
for decades in favor of the Republic of China (Taiwan), driven by political motives
rather than legal assessments.
 Some States delay recognition to avoid political fallout or to signal disapproval of
how independence was achieved (e.g., via unilateral declaration, armed conflict, or
foreign intervention).

The Role of Recognition in International Law

Despite the debate, international law increasingly treats recognition as declaratory in nature,
but acknowledges that recognition enables a State to fully exercise its rights and obligations.
 Recognition facilitates treaty-making, diplomatic exchanges, and participation in
international organizations.
 Even unrecognized or partially recognized States like Taiwan or Palestine often
engage in international trade, diplomacy, and regional cooperation, illustrating the
functional capacity of such entities.

Challenges in Practice
The lack of uniform recognition can lead to several challenges:
 Legal uncertainty about whether certain treaties or laws apply to the unrecognized
entity.
 Difficulties in claiming sovereign immunity or diplomatic privileges.
 Controversies in international adjudication and membership in intergovernmental
organizations.
For example, Kosovo’s admission to the United Nations has been blocked by vetoes, and its
sovereignty remains disputed, affecting its full participation in international law.

Lauterpacht’s Adaptation: A Balanced Perspective

Prominent legal scholar Hersch Lauterpacht attempted to reconcile the two theories by
proposing that:
 Recognition should be granted when statehood criteria are fulfilled, i.e., a legal
obligation arises once an entity satisfies the Montevideo conditions.
 However, he acknowledged that recognition remains a discretionary political act,
influenced by the interests and judgments of recognizing States.
Lauterpacht’s view supports the idea that international legal norms should guide recognition,
but that real-world practice inevitably includes political dimensions.

Recognition of Governments
The Tinoco Arbitration (1923)
 A landmark case involving Great Britain v. Costa Rica known as the Tinoco
Arbitration.
 The Tinoco government in Costa Rica was overthrown in 1919, and the new
government refused to honor treaties made by the Tinoco regime.
 The arbitration, presided over by Chief Justice William Taft, held that despite non-
recognition by other states, the Tinoco government was valid for the purposes of
international obligations because it exercised effective control over Costa Rica.
 This case is often cited as supporting recognition based on effective control rather
than legality or legitimacy.

Tobar Doctrine
The Tobar Doctrine originated in Ecuador in 1912 and is named after Carlos Tobar, Ecuador’s
Foreign Minister at the time. This doctrine holds that governments which come to power
through unconstitutional or illegal means—such as coups, revolutions, or military takeovers
—should not be recognized by other states until they have gained popular acceptance within
their own country. The Tobar Doctrine reflects a commitment to uphold constitutional order
and democratic legitimacy, aiming to discourage violent or unlawful seizures of power. It was
primarily applied in Latin America to prevent the recognition of military juntas or dictatorial
regimes, thereby promoting political stability and respect for the rule of law. For instance,
Ecuador and some of its neighbors used this doctrine to withhold diplomatic recognition from
regimes that seized power by force. However, the doctrine has faced criticism for being
politically selective and for the difficulty in objectively measuring “popular acceptance.” It
could also inadvertently encourage diplomatic isolation or foreign interference under the
guise of restoring constitutional order.

Wilson Doctrine
The Wilson Doctrine, named after US President Woodrow Wilson and developed during and
after World War I, similarly emphasizes the importance of democratic legitimacy in
recognizing governments. Wilson’s foreign policy was rooted in ideals of self-determination,
democracy, and moral principles in international relations. According to this doctrine, the
recognition of a government should depend on whether it enjoys the support of its people and
adheres to democratic norms. The Wilson Doctrine rejects recognition of regimes that come
to power through force, violence, or dictatorship. This principle influenced US policy in Latin
America and the Caribbean, where the US discouraged recognizing military regimes and
supported governments that demonstrated democratic credentials. For example, the US
initially refused to recognize Mexican governments that took power via revolution before
stability was restored by the 1917 Constitution. While the doctrine helped align US foreign
policy with ideals of democracy and legality, pragmatic geopolitical interests often tempered
this idealism in subsequent years.

Estrada Doctrine
In contrast, the Estrada Doctrine, articulated by Mexican diplomat Genaro Estrada in 1930,
rejected the conditional approach of the Tobar and Wilson doctrines. Instead, the Estrada
Doctrine promotes a policy of non-intervention and automatic recognition of governments
regardless of how they came to power. Estrada argued that it was not the place of foreign
states to judge the legitimacy of another country’s government, and that such judgments
could lead to interference in domestic affairs. The doctrine thus emphasizes respect for
sovereignty and the principle that diplomatic recognition should not be used as a political
tool. This approach was adopted by Mexico as a way to avoid entanglement in the frequent
political upheavals that characterized Latin America during that period. The Estrada Doctrine
has since influenced Mexican foreign policy, prioritizing non-intervention and neutrality in
recognizing governments worldwide.
Uk’s 1980 Policy Shift – From Recognition To Dealings
In 1980, the United Kingdom undertook a significant transformation in its foreign policy
concerning the recognition of governments. Traditionally, recognition was a formal, explicit
act by which a state acknowledged the legitimacy of another state’s government. This formal
recognition often carried substantial legal and political implications, including diplomatic
privileges and immunities. However, the UK’s new approach marked a departure from the
conventional practice of formally recognizing governments, instead restricting recognition to
the state itself, regardless of who was in power.
This policy shift was motivated by the complexities and sensitivities involved in recognizing
governments, especially those that came to power through coups, revolutions, or other
unconstitutional means. Formal recognition had often placed states in politically difficult
positions, forcing them to publicly endorse or reject regimes, which sometimes compromised
diplomatic flexibility or neutrality. By limiting recognition to the state, the UK aimed to
avoid becoming entangled in questions of legitimacy or political judgment regarding
governments, focusing instead on the continuing legal existence of the state entity.
Under this policy, the UK no longer issued explicit, formal declarations recognizing
governments. Instead, recognition was inferred from the nature and extent of the UK's
practical dealings with the authorities in control. These dealings could include the
establishment or maintenance of diplomatic relations, participation in bilateral agreements,
trade negotiations, consular activities, or other official interactions. The substance of these
engagements was treated as sufficient evidence of the UK’s acceptance of the governing
authority’s effective control, without the need for formal recognition statements.
This practical approach allowed the UK to maintain diplomatic and commercial relations
with governments in a more flexible and politically neutral manner. It also helped avoid the
perception of interference in the domestic affairs of other states by not explicitly endorsing or
condemning particular regimes. Such a policy was particularly useful during periods of
political instability or regime change, enabling the UK to continue its international relations
while withholding formal judgments on legitimacy.
Overall, the UK’s 1980 shift reflects an evolution in international relations toward
pragmatism and caution. It underscores the distinction between the legal existence of a state
as a subject of international law and the often transient nature of the governments that
administer it. This approach has influenced other countries’ diplomatic practices and is now
widely recognized as a more adaptable method of dealing with the realities of global politics.

Venezuela – Guaidó vs. Maduro (2019)

 The UK and several Western countries recognized Juan Guaidó as the legitimate
leader of Venezuela, rejecting Nicolás Maduro’s government.
  In 2021, the UK Supreme Court recognized Guaidó’s status “unequivocally.”
 This raised important questions of legitimacy vs effective control, as Maduro retained
actual control of the government machinery despite widespread non-recognition.

The Taliban and Recognition Issues (2021–Present)

 After the Taliban regained control of Afghanistan in 2021, most countries have
withheld formal recognition.
 However, de facto dealings (especially humanitarian aid and negotiations) occur,
reflecting a pragmatic approach in the absence of formal legitimacy.

Recognition Doctrines – Effective Control Vs. Legitimacy

The recognition of governments in international law has long been a complex and nuanced
issue, largely because it involves balancing two sometimes competing principles: the reality
of control on the ground and the legitimacy of the authority in power. The Effective Control
Doctrine and the Legitimacy Doctrine represent two foundational but contrasting approaches
to this challenge.

Effective Control Doctrine

The Effective Control Doctrine is grounded in a pragmatic view of sovereignty and
governance. According to this doctrine, a government is recognized primarily based on its
actual ability to exercise authority and control over a territory and population. This means
that regardless of how the government came to power—whether through revolution, coup, or
other means—what matters most is whether it can effectively govern and maintain order
within the state’s borders. Recognition under this doctrine reflects political realities and
prioritizes stability, continuity, and functionality in international relations. It ensures that
states engage with the authorities who can practically represent and bind the state on the
international stage, enabling diplomatic relations, treaty-making, and cooperation.

Legitimacy Doctrine
On the other hand, the Legitimacy Doctrine emphasizes normative and legal considerations.
This approach holds that recognition should depend on whether a government’s claim to
power conforms to constitutional principles, democratic legitimacy, or lawful succession.
Under this doctrine, the origin and nature of the government’s authority are critically
important. Recognition is withheld from regimes that come to power through unconstitutional
or illegitimate means, such as military coups or fraudulent elections. Instead, recognition
supports governments that uphold the rule of law, human rights, and democratic values,
reinforcing international norms and encouraging lawful governance. This approach often
aligns with foreign policy goals that promote democracy and human rights but can lead to
diplomatic dilemmas when a legitimate government lacks effective control, or vice versa.
In contemporary international practice, states frequently adopt a mixed approach, blending
aspects of both doctrines. This hybrid model reflects the reality that neither effective control
nor legitimacy alone is sufficient to address the complexities of modern statecraft. States may
initially engage with a government that holds effective control to protect their strategic
interests and maintain stability but withhold full diplomatic recognition if the government’s
legitimacy is questionable. Conversely, they may support a government’s claim to legitimacy
while it struggles to consolidate actual control, especially in situations of civil war or
contested governance.
This combined approach seeks to balance political pragmatism with principled adherence to
international legal norms, enabling states to respond flexibly to evolving political contexts. It
also underscores the inherently political nature of recognition, which is often influenced by
broader strategic, economic, and diplomatic considerations beyond purely legal criteria.
Ultimately, the tension between effective control and legitimacy continues to shape
international responses to regime changes, revolutions, and conflicts, reflecting the dynamic
and contested nature of sovereignty in global affairs.

De facto and De Jure recognition

In international law and diplomacy, the concepts of de facto and de jure recognition serve as
important tools for states when deciding how to engage with new or contested governments.
These forms of recognition allow states to navigate the delicate balance between political
realities on the ground and legal or normative considerations about legitimacy and
sovereignty.

De facto recognition
is essentially a cautious and provisional acknowledgment of a government’s control over a
territory. It indicates that the recognizing state accepts the factual situation—that a particular
regime currently holds power and exercises effective control—but stops short of granting full
legitimacy or permanence. This type of recognition is often temporary and tentative,
reflecting uncertainty or skepticism about the government’s long-term viability or legal right
to rule. It permits limited interaction, such as the establishment of communication channels
and basic consular relations, but does not confer the full range of diplomatic rights and
privileges. A classic example of de facto recognition occurred when the United Kingdom
acknowledged the Soviet government in 1921, shortly after the Bolshevik revolution, despite
widespread doubts about the regime’s permanence and ideological opposition. This cautious
approach allowed the UK to maintain practical relations without fully endorsing the Soviet
regime’s legitimacy.
de jure recognition
In contrast, de jure recognition is a full, formal acknowledgment of a government’s
sovereignty, legitimacy, and permanence. When a state grants de jure recognition, it legally
accepts the government as the rightful authority of the state, with all attendant diplomatic and
legal rights. This status allows for the establishment of full diplomatic relations, the
negotiation of treaties, and official participation in international organizations. De jure
recognition is generally granted only after a period of observation and stability following de
facto recognition, ensuring that the government’s control is not merely temporary or
contested. Continuing with the previous example, the United Kingdom extended de jure
recognition to the Soviet government in 1924, after it became clear that the Bolsheviks had
consolidated their authority and would remain in power. This formal recognition marked a
turning point, signaling full acceptance of the Soviet regime as a legitimate actor on the
international stage.
Together, these two forms of recognition enable states to respond flexibly and pragmatically
to changing political circumstances. De facto recognition allows for practical engagement
with new regimes without prematurely endorsing their legitimacy, thereby preserving the
recognizing state’s options. De jure recognition, on the other hand, signifies full legal
acceptance and commitment to diplomatic relations. The distinction between the two is
crucial, as premature or unconditional recognition can have serious diplomatic repercussions,
while withholding recognition altogether might isolate a government and limit a state’s
influence. In practice, the process from de facto to de jure recognition reflects both the
evolving realities of power and the normative judgments that underpin international law.

Civil War Situations – Dual Recognition

During civil wars, the issue of recognition becomes particularly complex because multiple
factions may claim to be the legitimate government. In such scenarios, states often resort to a
combination of de facto and de jure recognition to navigate the political turmoil while
protecting their strategic interests. A well-known example is the Spanish Civil War (1936–
1939), where the United Kingdom recognized the Republican government de jure,
acknowledging it as the lawful authority under international law. Simultaneously, the UK
granted de facto recognition to General Franco’s Nationalist forces, which exercised actual
control over significant parts of Spain. This nuanced approach allowed the UK to maintain a
stance of strategic neutrality, preserving diplomatic relations with both sides without fully
endorsing either faction’s claim to sovereignty. By distinguishing legal legitimacy from
factual control, dual recognition provided a flexible framework to address the uncertainties
and shifting realities typical in civil conflict situations.

Legal Consequences of Recognition

The act of recognizing a government carries important legal consequences in both domestic
and international spheres. Governments that receive de jure recognition gain full legal
status, enabling them to assert ownership of state property, enter into binding treaties, and
enjoy diplomatic immunities under international law. This recognition grants the government
the authority to represent the state fully and carry out international relations with other states
and organizations. Conversely, governments recognized only de facto have limited legal
standing; they may exercise control within their territory but generally lack the formal
capacity to claim assets abroad or engage in official diplomatic activities. This limited status
can affect the rights and protections afforded to citizens, businesses, and diplomats operating
under such governments, often leading to uncertainty and restricted international engagement.
Consequently, recognition is a key factor shaping the legal and practical realities faced by
contested regimes and their populations.

Premature and Overdue Recognition

Timing is critical when it comes to recognition, and states can sometimes grant it either
prematurely or too late, with significant repercussions for international relations. Premature
recognition occurs when a state acknowledges a government or entity before it has
established stable control or legitimacy, often leading to diplomatic disputes. For example,
during the Nigerian Civil War, the breakaway state of Biafra was recognized by five
countries, but Nigeria contested these recognitions as premature, arguing that Biafra lacked
sovereign status. Similarly, during the breakup of Yugoslavia, Croatia and Bosnia-
Herzegovina were recognized internationally despite ongoing conflict and limited control
over their territories, raising questions about the prudence of early recognition. On the other
hand, overdue recognition may delay engagement and complicate conflict resolution, as
seen in cases like South Ossetia and Abkhazia, where Russia recognized these breakaway
regions, but many other states deemed this premature due to weak international support and
contested sovereignty. These examples illustrate how the timing of recognition affects
legitimacy, conflict dynamics, and international stability.

Implied Recognition
Recognition does not always have to be explicit or formal; it can also be implied through a
state’s conduct and diplomatic interactions. Implied recognition may be inferred from actions
such as sending official congratulatory messages to new leaders, establishing diplomatic or
consular relations, or issuing consular exequaturs (official permissions for consuls to
operate). Signing bilateral treaties can also indicate recognition, though this is often case-
specific and depends on the treaty’s nature and intent. However, informal or incidental
contacts, like temporary agreements or meetings, generally do not amount to recognition. For
example, merely engaging in talks with a rebel group does not imply recognition of their
government status. The key aspect of implied recognition is that it must be clear, deliberate,
and consistent to be legally meaningful and avoid ambiguity in diplomatic relations.

Limits of Implied Recognition

While implied recognition can arise from a state’s actions, there are important limits to this
concept to prevent misunderstandings. Not all acts of cooperation or interaction constitute
recognition. For instance, signing multilateral treaties such as the UN Charter does not imply
recognition of all participant states, as membership may include disputed or transitional
entities. However, voting in favor of a state’s admission to the United Nations is generally
regarded as strong evidence of recognition, as it involves collective approval by the
international community. Ambiguous or vague conduct is insufficient to establish recognition,
because the political and legal stakes require clear and deliberate acknowledgment. This
cautious approach helps maintain clarity in international relations and ensures that
recognition remains a meaningful, authoritative act rather than a product of incidental or
informal contacts.

Conditional Recognition
States may choose to grant recognition conditionally, tying their acceptance to political
promises, guarantees, or compliance with certain standards. This approach allows states to
encourage desired behaviors, such as respect for human rights, democratic governance, or
security arrangements, before granting full legitimacy. A historical example is the 1933
Litvinov Agreement, in which the United States recognized the Soviet Union but imposed
conditions related to security assurances and financial claims. Conditional recognition differs
from criteria-based recognition, which relies on objective legal standards like the Montevideo
Convention’s requirements for statehood (defined territory, population, government, and
capacity to enter into relations). Instead, conditional recognition is a diplomatic tool used to
influence political developments and promote stability, often requiring ongoing compliance
before full diplomatic engagement is extended.

Collective Recognition
Recognition can also be exercised collectively through international organizations such as the
League of Nations or the United Nations. Collective recognition promotes consistency and
uniformity in how states acknowledge governments or new states, reducing the risk of
conflicting decisions that could undermine international order. For example, admission to the
United Nations generally signifies broad international acceptance of a government’s
legitimacy. However, collective recognition faces challenges, notably political disagreements
among member states with differing interests or alliances. Such disputes can delay or
complicate recognition decisions, as seen in cases involving contested territories or
governments. Despite these challenges, collective recognition remains a powerful mechanism
for legitimizing governments and states on the international stage.

Withdrawal of Recognition
Recognition, particularly de facto recognition, can be withdrawn if political circumstances
change significantly, such as when a government loses control, is overthrown, or no longer
meets recognition conditions. While de jure recognition is more stable due to its formal and
legal nature, it can also be withdrawn in exceptional cases, often reflecting profound shifts in
diplomatic relations. An example is the withdrawal of recognition by the UK and France of
the Khmer Rouge regime in Cambodia in 1979, after it was overthrown by Vietnamese
forces. However, these states did not immediately recognize a successor government,
illustrating the complexities involved in withdrawing and reassigning recognition.
Withdrawal of recognition sends a strong political signal and can impact diplomatic relations,
treaty obligations, and the legal status of the government involved.

Case Examples
Various cases illustrate the diverse application and consequences of recognition in
international relations. In 1979, the United States formally recognized the People’s Republic
of China as the sole legitimate government of China, withdrawing recognition of Taiwan,
while maintaining domestic legal and economic relations with Taiwan. The situation in
Rhodesia (1965–1979), where a white-minority government declared independence
unilaterally, resulted in near-universal non-recognition and international sanctions. The
Turkish Republic of Northern Cyprus (TRNC) is recognized only by Turkey, with the United
Nations condemning this recognition as illegal under international law. Iraq’s 1990
annexation of Kuwait was universally rejected, prompting international military intervention.
The UK’s gradual de facto and later de jure recognition of Italian occupation of Ethiopia in
1936 showed how recognition can reflect shifting political realities over time. These
examples highlight how recognition impacts sovereignty disputes, conflict resolution, and the
legitimacy of governments.

Legal Effects of Recognition

Ultimately, recognition is a political act with far-reaching legal consequences both
domestically and internationally. It determines a government’s status under international law,
enabling it to engage in diplomatic relations, enter into treaties, and enjoy immunities that
protect its representatives abroad. Courts generally defer to the executive branch’s decisions
on recognition and do not independently create or withhold recognition, underscoring its
inherently political nature. The legal effects of recognition influence not only the recognized
government’s capacity to act internationally but also the rights and protections afforded to its
citizens, businesses, and diplomats. As such, recognition is a foundational aspect of state
sovereignty and the international legal order.

INTERNATIONAL LEGAL EFFECTS (GENERAL RULE)

Recognition in international law primarily serves to affirm the existence of a factual situation.
When a state or government is recognized by other states or international entities, it is an
acknowledgment that the entity in question exists as a functioning political and legal entity
under international law. However, this recognition does not create the entity; rather, it
confirms its reality in the international system.
Importantly, non-recognition does not equate to a denial of the entity’s rights or obligations
under international law. An entity, even if not formally recognized, remains bound by
international law and may hold certain rights. For example, an unrecognized state, while
lacking formal diplomatic recognition, still has to adhere to international treaties, laws of war,
and obligations such as respecting human rights within its territory. This principle ensures
that international law applies universally and is not contingent solely upon recognition.
A classic example is the case of Taiwan, which, despite limited formal recognition, is still
subject to many international legal norms and obligations. Similarly, entities like Palestine or
the Sahrawi Arab Democratic Republic have varying degrees of recognition but still engage
with international legal systems in certain respects.

DIPLOMATIC CONSEQUENCES
One of the primary practical effects of non-recognition is the absence of formal diplomatic
relations between states or entities. Without recognition, states typically do not establish
embassies, exchange ambassadors, or participate fully in diplomatic protocols. This results in
limitations on direct diplomatic communication and cooperation.
This lack of diplomatic recognition has practical consequences, such as difficulties in
submitting international claims, negotiating treaties, or representing the entity in international
organizations like the United Nations. However, it is crucial to understand that these are
practical or political consequences, not legal ones.
Legal obligations and duties under international law still apply regardless of diplomatic
recognition. For instance, an unrecognized government must still respect treaties it is party to
and may be held accountable under international law for breaches. The distinction here is that
diplomatic recognition influences how entities interact on the international stage but does not
alter their substantive legal status under international law.

MUNICIPAL LAW EFFECTS – GENERAL OVERVIEW

Recognition also has important implications within the domestic (municipal) legal systems of
states. It is considered an executive act—usually carried out by the government’s foreign
affairs or executive branch—signaling that the recognized entity is accepted for purposes of
domestic law.
In most legal systems, the judiciary defers to the executive's decision on recognition. Courts
generally do not have the authority to grant or deny recognition independently; instead, they
accept the government’s recognition status as a given. This doctrine avoids judicial
interference in political or foreign policy decisions.
Courts, however, are responsible for applying the legal consequences of recognition. For
example, once an entity is recognized, courts may treat its documents, legislative acts, or
judicial decisions as valid within domestic legal proceedings. This separation of powers
preserves clarity in foreign relations and avoids conflicting legal stances within a country.

LEGAL EFFECTS OF RECOGNITION DOMESTICALLY

Recognition carries several specific legal consequences in domestic law, including:
 Right to sue in domestic courts: A recognized government or state can initiate lawsuits
or defend itself in the courts of the recognizing state. This is important for protecting
rights and resolving disputes.
 Immunity from suit in certain cases: Recognized states and their officials may enjoy
sovereign immunity or diplomatic immunity, protecting them from legal actions in
foreign courts, especially concerning official acts or diplomatic missions.
 Legal recognition of legislative and executive acts: Acts passed by the recognized
government—such as laws, regulations, or executive orders—are given effect and
enforcement in the domestic legal system of the recognizing state.
 Immunities for diplomatic representatives: Officials and diplomats representing the
recognized state benefit from immunities under international and domestic law,
safeguarding their functions and persons from interference.
 Possession of property of predecessor state: Recognition often includes acceptance of
rights to property owned by a prior regime or state, allowing the recognized
government to control assets within the recognizing state’s jurisdiction.
These effects ensure that recognition is not merely symbolic but translates into tangible legal
authority and protections within the recognizing state’s domestic framework.

RIGHTS OF STATES
1. Sovereignty
Sovereignty is the fundamental principle that a state has full and exclusive control over its
territory, population, and governance. This means that no other state can interfere in its
internal affairs or dictate its domestic policies. Sovereignty encompasses political
independence and the power to make and enforce laws within the state's borders. It forms the
cornerstone of the international legal order, as every recognized state enjoys this supreme
authority without subordination to any other state.
2. Equality
All states are considered equal under international law, irrespective of their geographic size,
population, economic power, or military strength. This principle ensures that each state has
the same rights and duties in the international community and that no state holds inherent
superiority over another. Equality allows smaller or less powerful states to participate fully in
international affairs on the same footing as larger powers.
3. Self-Defense
Under Article 51 of the United Nations Charter, every state has an inherent right to self-
defense if it faces an armed attack. This right allows states to use necessary and proportionate
force to protect their sovereignty and territorial integrity until the UN Security Council takes
appropriate measures to maintain international peace and security. The principle of self-
defense recognizes the state's duty to ensure its own security and survival.
4. Treaty-Making
States possess the right to enter into treaties and agreements with other states or international
organizations. These legally binding agreements can cover a wide range of issues including
trade, security, environmental protection, and human rights. The capacity to conclude treaties
is essential for states to cooperate, regulate their relations, and participate in the global legal
system.
5. Diplomatic Relations
States have the right to establish diplomatic relations with other states, which includes
sending and receiving diplomatic representatives such as ambassadors and maintaining
embassies or consulates. Diplomacy facilitates peaceful communication, negotiation, and the
protection of state interests abroad. It is a key tool for maintaining international order and
resolving disputes.
6. Participation in International Organizations
States have the right to join and actively participate in international organizations such as the
United Nations, the World Trade Organization, the International Monetary Fund, and regional
bodies like the African Union or the European Union. Participation allows states to contribute
to global governance, influence international norms, and cooperate on issues that transcend
national borders.
7. Independence
Independence ensures that states are free from external domination, coercion, or control. This
right protects states from interference by other states or entities, preserving their ability to
make autonomous decisions regarding their political, economic, and social affairs.
Independence is closely linked to sovereignty but emphasizes freedom from external
pressures or influence.
DUTIES OF STATES
1. Respect for Sovereignty
States must respect the sovereignty and territorial integrity of other states. This means
refraining from any acts that would violate or undermine another state's control over its own
territory or internal affairs. Respecting sovereignty is fundamental to maintaining peaceful
and stable international relations.
2. Peaceful Settlement of Disputes
States are obligated to resolve conflicts through peaceful methods such as negotiations,
mediation, arbitration, or adjudication before international courts. The use of violence or
coercion to settle disputes is prohibited unless it falls under self-defense or is authorized by
the UN Security Council. Peaceful dispute resolution helps prevent escalation and maintains
global order.
3. Compliance with International Law
States must comply with the international treaties, conventions, and customary international
law to which they are parties. This includes obligations regarding trade, the environment,
human rights, disarmament, and other areas of global concern. Compliance promotes trust,
predictability, and cooperation between states.
4. Non-Aggression
States must refrain from using force or threatening to use force against other states, except in
cases of legitimate self-defense or when acting under the authorization of the UN Security
Council. This duty supports the principle of peaceful coexistence and the maintenance of
international peace and security.
5. Protection of Human Rights
States have the responsibility to protect and promote human rights within their territories.
This includes ensuring the rights to life, liberty, equality, and freedom from torture or
discrimination, in line with international human rights treaties and norms. The protection of
human rights is increasingly recognized as a core obligation of sovereign states.
6. Cooperation with the International Community
States are expected to cooperate with other states and international organizations to address
common global challenges. These include issues like climate change, global health
pandemics, international trade, and security threats such as terrorism. Cooperation reflects the
interconnectedness of the modern world and the necessity of collective action for shared
goals.

UNIT 6

Definition:
State territory is the defined geographical space over which a state exercises sovereign
authority. It forms one of the fundamental components of statehood in international law. The
territory is essential because sovereignty—a state’s supreme power and authority—is always
exercised within territorial boundaries.

Components of State Territory:

1. Land Territory:
This refers to the physical landmass controlled by a state, including islands. The
boundaries of land territory are usually established by historical treaties, agreements,
or customary international law. Land territory forms the core physical space for a
state’s population, infrastructure, and governance.
2. Internal Waters:
These are waters on the landward side of the baseline from which the territorial sea is
measured. Internal waters include rivers, lakes, ports, and bays that lie within the
state’s boundaries. The state exercises full sovereignty over internal waters, just like
its land territory.
3. Territorial Sea:
A coastal state has sovereignty over its territorial sea, which extends up to 12 nautical
miles from the baseline (usually the low-water mark along the coast). Within this
zone, the state can enforce laws, regulate use, and exploit resources. However, other
states have the right of innocent passage through the territorial sea.
4. Airspace:
Airspace above the land territory, internal waters, and territorial sea falls under the
sovereignty of the state. A state controls and regulates the use of airspace, including
commercial flights, military operations, and drones.
5. Continental Shelf:
The continental shelf extends beyond the territorial sea up to 200 nautical miles or
more, depending on the geology of the seabed. The state has sovereign rights to
explore and exploit natural resources (like oil and gas) on the continental shelf but
does not have full sovereignty as it does over land territory.
6. Exclusive Economic Zone (EEZ):
The EEZ extends up to 200 nautical miles from the baseline, where the state has
sovereign rights over the exploration and use of marine resources (such as fishing and
minerals). However, unlike the territorial sea, the EEZ is not part of the state’s
sovereign territory but is a special resource zone.
Importance of State Territory:
 It provides the physical and legal space for the state to exercise authority and
sovereignty.
 Territorial boundaries determine jurisdiction in matters of law enforcement, taxation,
natural resources, and governance.
  Disputes over territory are among the most common causes of international conflicts.
 The integrity and inviolability of state territory are protected under international law,
especially by the United Nations Charter, which prohibits acquisition of territory by
force.

Modes Of Acquisition Of State Territory

State territory is a fundamental component of state sovereignty, and international law
recognizes specific modes by which states may acquire territory. These modes have evolved
alongside principles of modern international law, especially the prohibition of forceful
acquisition post-1945.

1. OCCUPATION
Occupation is a foundational concept in international law describing how a state may acquire
sovereignty over territory that is not currently under the sovereignty of any other state. This
type of territory is called terra nullius, meaning "land belonging to no one." Such land is
essentially "empty" of sovereign authority, and thus open for acquisition by states through
occupation.
However, mere discovery or claim is insufficient for sovereignty. The doctrine requires that a
state actually take possession with the intention to act as sovereign and demonstrate effective
control over the territory. This means the state must actively govern, administer, or otherwise
exercise authority over the area in a continuous and peaceful manner.

Legal Elements of Occupation

1. Terra Nullius:
The land must genuinely be without prior sovereignty. If another state or people
already exercise sovereignty, occupation is invalid.
2. Intention to Act as Sovereign:
The occupying state must show clear intent to govern the territory as its sovereign.
This goes beyond symbolic acts of claiming land and involves establishing
governmental functions.
3. Effective Control and Continuous Authority:
Occupation requires effectivités—actual exercise of authority. This includes
administration, enforcement of laws, protection, and presence over time. It must be
peaceful and uncontested for the claim to hold.
4. Peaceful Acquisition:
The acquisition must not be through force or conquest (which modern international
law prohibits).
Occupation allows states to expand or assert sovereignty over unclaimed or ungoverned
lands, such as newly discovered islands, remote territories, or wilderness areas. Historically,
many states acquired colonies or territories this way.

Key Case Law: Island of Palmas (Miangas) Case, 1928

 Facts:
The United States claimed sovereignty over the Island of Palmas (also known as
Miangas), located near the Philippines, based on discovery rights inherited from
Spain. The Netherlands also claimed the island, citing continuous and peaceful
administration since the 17th century.
 Reasoning:
o Mere discovery (as claimed by the US) was insufficient without effective
occupation.
o The Netherlands demonstrated continuous, peaceful, and actual exercise of
authority over the island. This included administrative acts and recognition by
local inhabitants.
o The principle of effectivités was crucial — the actual display of state functions
was key to sovereignty, not historic discovery or symbolic claims.
 Significance:
This case firmly established that acquisition of territory by occupation must rest on
effective and peaceful control, not just discovery or historical claim. It remains a
cornerstone in international territorial disputes involving occupation.

2. PRESCRIPTION
Prescription in international law refers to the acquisition of sovereignty over territory by a
state through continuous, peaceful, and uncontested exercise of authority over that territory
for a significant period, despite the territory initially belonging to or being claimed by another
state.
Unlike occupation, which applies to terra nullius (land belonging to no one), prescription
applies when there is an existing claim or title to the territory by another state but that state
has failed to effectively assert or maintain its sovereignty over the land.
Prescription essentially legitimizes the de facto control exercised by a state where the original
sovereign fails to challenge such control within a reasonable time. This process leads to a
new legal title through the principle of acquiescence.
Legal Elements of Prescription
For prescription to operate as a valid mode of acquiring territorial sovereignty, several
conditions must be satisfied:
1. Effective Control (Effectivités):
The claiming state must exercise actual authority over the territory. This includes
administration, enforcement of laws, maintaining public order, taxation, and other
governmental functions.
2. Continuity and Duration:
The possession must be continuous and uninterrupted for a sufficiently long period.
Although international law does not specify a fixed time frame, the duration must be
long enough to demonstrate settled control.
3. Peaceful Possession:
The control over the territory must be peaceful, without the use of force or conflict.
4. Non-Objection or Acquiescence by the Original Sovereign:
The original sovereign or other states with competing claims must fail to protest or
contest the possession during the period of control. Silence or lack of objection is
interpreted as acceptance or acquiescence to the new sovereignty.

Importance of Prescription
Prescription serves to stabilize territorial sovereignty by rewarding effective governance and
penalizing neglect or failure to enforce sovereignty claims. It prevents states from indefinitely
disputing control over territory when another state has clearly and peacefully established
authority.

Key Case Law: Island of Palmas (Miangas) Arbitration, 1928

 Context:
In the Island of Palmas dispute between the United States and the Netherlands, the
arbitrator Max Huber ruled that the Netherlands had acquired sovereignty through
continuous and peaceful exercise of authority over the island.
 Significance for Prescription:
While the US claimed the island based on earlier discovery, the Netherlands
demonstrated prescription by proving effective, continuous, and uncontested
sovereignty over many years.
 Outcome:
The decision reinforced that long-term, peaceful control and non-contestation by
other states effectively create valid title to territory.
Guatemala v. Belize (ICJ, 2019)
 Summary:
This case dealt with territorial sovereignty disputes and recognized that prolonged
and uncontested administration and presence on disputed territory can amount to
prescriptive acquisition.
 Relevance:
The International Court of Justice (ICJ) highlighted the importance of effectivités and
acquiescence in determining sovereignty, reflecting principles central to prescription.

3. CESSION
Cession refers to the voluntary transfer of territory from one state to another through a formal
agreement, typically a treaty. This mode of acquisition is peaceful, consensual, and based on
mutual consent of the states involved. Unlike conquest or occupation, cession does not
involve force but relies on diplomatic negotiations and legal instruments.
Through cession, the sovereign rights over a defined territorial area are legally transferred,
along with associated jurisdictional authority, governance, and obligations. The transferred
territory becomes part of the acquiring state’s sovereign domain, subject to its laws and
governance structures.

Legal Requirements and Principles

1. Mutual Consent:
The transfer must be agreed upon by both the ceding state and the acquiring state.
This agreement is usually formalized through a treaty or convention.
2. Clarity and Explicitness:
The treaty or agreement must clearly identify the territory to be transferred and detail
the terms and conditions of the cession.
3. International Recognition:
The transfer is recognized under international law when the agreement is respected by
other states and international bodies, ensuring legitimacy.
4. Respect for Population and Rights:
Often, the rights and interests of the local population in the ceded territory are
addressed in the treaty, including citizenship, property rights, and cultural protections.
5. Peaceful Transfer:
The cession should be free from coercion, force, or duress to be valid under
international law.
Historical Examples of Cession
 Louisiana Purchase (1803):
France ceded the vast Louisiana territory to the United States through a treaty,
doubling the size of the US peacefully and significantly affecting the geopolitical map
of North America.
 Treaty of Guadalupe Hidalgo (1848):
Mexico ceded large territories (including present-day California, Arizona, New
Mexico, and others) to the United States after the Mexican-American War, through a
negotiated treaty.
These examples illustrate how cession has been a vital mechanism in peaceful territorial
transfers, often accompanied by treaties outlining the rights and duties of the parties.

Key Case Law: Legal Status of Eastern Greenland (Denmark v. Norway), 1933
 Background:
Norway claimed sovereignty over Eastern Greenland, disputing Denmark’s claim.
Denmark asserted sovereignty based on prior discovery and effective administration.
 Court’s Reasoning:
The Permanent Court of International Justice (PCIJ) emphasized Denmark’s effective
occupation and administration as the basis for sovereignty. Although the case was
more about occupation, the principles of treaty recognition and peaceful acquisition
of territory were affirmed.
 Outcome:
The Court upheld Denmark’s sovereignty over Eastern Greenland, reinforcing the
importance of legal instruments and effective control in territorial disputes, which are
also central to cession.

Significance of Cession in International Law

 Cession reflects the principle of sovereign equality and consent among states.
 It helps resolve territorial disputes peacefully without resorting to conflict.
 It emphasizes treaty law as a primary source of international legal obligations and
rights over territory.
 Cession ensures a clear and legally binding transfer of sovereignty, facilitating
international stability.

4. CONQUEST (NOW ILLEGAL UNDER INTERNATIONAL LAW)

Historically, conquest was one of the most common methods through which states acquired
new territory. It involved the taking of land by force or war, where a victorious state would
claim sovereignty over the conquered territory. Conquest was accepted in classical
international law and international relations as a legitimate way for expanding territorial
control. Under this traditional view, the right of conquest was often equated with the right of
the victorious state to annex and administer the territory.
For centuries, conquest was embedded in the practice of states, especially during the eras of
colonization and empire-building. The legal principle of terra nullius (land belonging to no
one) was often used to justify territorial claims following conquest.

Modern International Law: Illegality of Acquisition by Force

The modern international legal order has fundamentally transformed this understanding.
Since the mid-20th century, the acquisition of territory by force has been categorically
prohibited under international law. This change is rooted primarily in the following legal
instruments and principles:
 Article 2(4) of the United Nations Charter (1945):
This article explicitly prohibits states from using or threatening force against the
territorial integrity or political independence of any state. It represents a fundamental
norm forbidding conquest as a legal means of acquiring territory.
 Hague Conventions (1899, 1907):
These early 20th-century conventions codified laws concerning the conduct of war,
emphasizing respect for sovereignty and territorial integrity, and limiting the effects of
military conquest.
 UN General Assembly Resolution 2625 (1970) — Declaration on Principles of
International Law:
This resolution reaffirms the principle of the non-recognition of territorial acquisition
resulting from the threat or use of force. It establishes that no territorial acquisition
arising from aggression shall be recognized as legal.
Thus, acquisition by conquest is now void and without legal effect under contemporary
international law.

Practical Consequences of Illegality of Conquest

 Non-recognition:
Territories acquired through aggressive war or forceful conquest are subject to
international non-recognition. States and international organizations generally refuse
to acknowledge such territorial claims.
 Right to Reclamation:
The original sovereign state, or the international community, can seek the restoration
 of sovereignty over the illegally acquired territory through peaceful or collective
measures.
 International Sanctions:
Aggressor states may face diplomatic, economic, or even military sanctions as a
consequence of violating the prohibition on acquisition by force.

1. Corfu Channel Case (United Kingdom v. Albania), ICJ, 1949

 Facts:
The UK brought a case against Albania regarding the destruction of British warships
by mines in Albanian waters. While the case was mainly about navigational rights
and Albania’s responsibility, the ICJ reaffirmed the principle of respecting sovereignty
and territorial integrity.
 Legal Significance:
The Court emphasized that states must respect territorial integrity and cannot resort
to the use of force to assert territorial claims. This case underlined that sovereignty
over territory must not be violated through forceful acts.
2. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
ICJ Advisory Opinion, 2004
 Facts:
The ICJ was asked to provide an advisory opinion on the legality of the wall
constructed by Israel in the Occupied Palestinian Territories.
 Court’s Reasoning:
The ICJ ruled that Israel’s construction of the wall and its associated measures
violated international law, particularly because they involved de facto annexation and
impeded the territorial integrity and sovereignty of the Palestinian people.
 Legal Impact:
The Court reaffirmed that acquisition of territory through force or occupation is
illegal, and that the principle of non-acquisition of territory by force remains a
cornerstone of international law.

5. ACCRETION
Accretion refers to the gradual and natural increase of land territory along the edges of a
state’s territory, typically caused by natural processes such as:
 Sediment deposits carried by rivers or ocean currents,
 The gradual build-up of soil and silt along riverbanks,
 Volcanic activity creating new landforms,
  Natural changes in coastlines.
This natural process leads to an incremental expansion of a state's sovereign territory without
any active intervention or human-made changes.

Legal Principles Governing Accretion

 Natural and Gradual Process:
The key characteristic of accretion is that the land increase must be slow, continuous,
and natural rather than sudden or artificially induced. If land changes suddenly due to
floods or earthquakes, different legal rules apply (e.g., avulsion).
 Automatic Sovereignty Extension:
When accretion occurs, the sovereignty of the state over its original territory extends
automatically to the newly formed land. This is accepted as a lawful acquisition of
territory under international law.
 No Breach of Another State’s Sovereignty:
The process must not infringe upon the territorial sovereignty of neighboring states. If
accretion occurs at or near a boundary, disputes may arise and require peaceful
settlement or adjudication.
 Distinction from Artificial Reclamation:
Artificial land reclamation—such as building dams, filling water bodies, or creating
land by human effort—is generally treated differently and can raise legal issues,
especially if it affects boundaries or harms other states.

Practical Applications
 River Boundaries:
In many international boundaries defined by rivers, accretion alters the physical
landscape gradually. Borders may shift naturally along with these changes, unless
states have agreed otherwise.
 Coastal Expansion:
Coastal states may gain additional land due to sediment deposits or volcanic island
formation, increasing their territorial sea and exclusive economic zones (EEZ).
 Environmental Considerations:
States may need to monitor natural processes that affect their borders, particularly
where accretion could lead to strategic or resource-related gains.
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua
intervening), ICJ, 1992
 Facts:
The dispute involved maritime and land boundaries between El Salvador and
Honduras, with Nicaragua participating as an intervenor. One of the key issues was
how natural processes like accretion and erosion affected the maritime boundary.
 Court’s Holding:
The International Court of Justice (ICJ) recognized that natural accretion results in
an extension of sovereignty, impacting maritime boundaries as well. The Court noted
that sovereignty extends to newly formed land by accretion, and boundaries shift
accordingly unless states agree otherwise.
 Legal Significance:
This case established that gradual natural changes to territory should be reflected in
the determination of boundaries and sovereignty. It reinforced accretion as a
legitimate method of territorial acquisition.

Modes of Loss of State Territory

States may lose territory through various modes, which can be voluntary or involuntary,
lawful or unlawful, temporary or permanent. Understanding these modes is crucial in
international law as they affect sovereignty, jurisdiction, and the rights of peoples.

1. Cession
Cession is the voluntary transfer of territory from one state to another, usually through a
treaty or formal agreement. It represents a peaceful and consensual change in territorial
sovereignty.
Legal Principles:
 Cession requires the mutual consent of the states involved.
 It is often accompanied by compensation or political agreements.
  Once ceded, the receiving state gains full sovereignty and jurisdiction over the
territory.
 Cession is regarded as a lawful and permanent transfer.

 Treaty of Guadalupe Hidalgo (1848): Mexico ceded a vast territory to the United
States, including California and Texas, after the Mexican-American War. This treaty
is a classic example of cession.
 Island of Palmas Case (1928): Although primarily about sovereignty dispute, this
case emphasized that sovereignty could be transferred by agreement or cession.

2. Separation
Separation involves a part of a state becoming independent or joining another state. This can
happen through secession, decolonization, or annexation.
Legal Principles:
 Separation often involves questions of self-determination and the right of peoples to
choose their sovereignty.
 It may be peaceful or result from conflict or decolonization processes.
 International recognition is crucial for the new entity’s statehood.
 Joining another state can be seen as a voluntary union or annexation depending on the
circumstances.

 Bangladesh Liberation War (1971): Bangladesh separated from Pakistan after a war
of independence.
 Case of Kosovo’s Declaration of Independence (2010, ICJ Advisory Opinion): The
ICJ ruled that Kosovo’s declaration did not violate international law, recognizing the
complex nature of separation and self-determination.

3. Annexation
Annexation is the forcible acquisition of territory by one state, often through military
occupation, without the consent of the territory’s sovereign state.
Legal Principles:
 Annexation is considered illegal under contemporary international law, particularly
after the UN Charter (1945), which prohibits acquisition of territory by force.
 It violates the principle of territorial integrity and sovereign equality of states.
  Annexation is generally not recognized by the international community.

 Nazi Germany’s Annexation of Austria (Anschluss, 1938): Widely condemned as

illegal annexation.
 Iraq’s Annexation of Kuwait (1990): Condemned by the UN Security Council and
reversed by coalition forces.
 Crimea Annexation by Russia (2014): Considered illegal by most states and the UN
General Assembly, affirming the illegality of annexation.

4. Occupation by Force
Occupation by force refers to the temporary control of a territory by a foreign military during
armed conflict, without transferring sovereignty.
Legal Principles:
 Occupation does not transfer sovereignty, only temporary control.
 The occupying power must comply with international humanitarian law, including the
Hague Regulations (1907) and the Fourth Geneva Convention (1949).
 The occupier must respect the rights of the local population and maintain public order.
 Sovereignty remains with the original state unless otherwise agreed or decided.

 Israeli Occupation of Palestinian Territories: Recognized as occupation, with

ongoing legal debate about sovereignty and settlement activities.
 ICJ Advisory Opinion on the Legal Consequences of the Construction of a Wall
(2004): Confirmed the occupied status of Palestinian territories.
 Allied Occupation of Germany (Post-WWII): Temporary occupation without transfer
of sovereignty until German state restoration.

5. Loss through Treaty

Loss through treaty occurs when a state cedes or exchanges territory as part of an
international agreement, often to settle disputes or define boundaries.
Legal Principles:
 Territory transfer must be expressly agreed in a treaty.
 Treaties are binding under the Vienna Convention on the Law of Treaties (1969).
 Such transfers are peaceful and recognized under international law.
  May include boundary adjustments, territorial swaps, or reparations.

 Treaty of Versailles (1919): Germany lost territories to various states post-WWI.

 Alaska Purchase (1867): Russia ceded Alaska to the United States via treaty.
 ICJ’s Border Dispute between Burkina Faso and Mali (1986): The Court emphasized
respect for treaty-defined boundaries in territorial questions.

State Succession
State succession in international law refers to the replacement of one state by another in the
responsibility for the international relations of a territory. It occurs when sovereignty over a
particular territory changes hands, meaning a new state assumes the rights and obligations
that previously belonged to another state.
This concept is crucial for maintaining legal continuity and order when political or territorial
changes happen. State succession deals with questions like: Which state inherits treaties?
What happens to debts, property, or diplomatic relations? How are rights and duties
transferred?

Causes and Types of State Succession

Succession may occur due to various historical and political changes, including:
1. Decolonization: Former colonies gain independence, e.g., African states in the mid-
20th century.
2. Dissolution of States: When a state breaks up into multiple independent states, e.g.,
the breakup of the USSR, Yugoslavia, or Czechoslovakia.
3. Unification: Two or more states merge to form a new state, e.g., Germany’s
reunification in 1990.
4. Secession: A part of a state separates to form a new independent state, e.g., South
Sudan’s independence from Sudan in 2011.

Legal Framework Governing State Succession

The Vienna Convention on Succession of States in Respect of Treaties (1978) and the Vienna
Convention on Succession of States in Respect of State Property, Archives and Debts (1983)
provide codified rules, although not universally ratified. These conventions aim to clarify
succession issues, but customary international law also plays a major role.

Key Issues in State Succession

1. Succession to Treaties
 When a new state emerges, does it inherit the treaty obligations of the predecessor
state?
 Universal Succession: The new state accepts all treaties automatically.
 Clean Slate Doctrine: Newly independent states start fresh, not bound by predecessor
treaties unless they expressly consent.
Examples:
 Newly independent African and Asian states generally adopted the clean slate
doctrine, freeing themselves from colonial treaties.
 In contrast, successor states of the USSR accepted many treaty obligations (e.g.,
Russia as the continuator state).
2. Succession to State Property and Debts
 Rights to state-owned property abroad and responsibility for debts may pass to the
successor state.
 The Vienna Convention (1983) sets guidelines on how these transfers should occur.
3. Succession to State Membership in International Organizations
 Some successor states automatically inherit membership (e.g., Russia as a successor
of USSR in the UN Security Council).
 New states usually apply for membership anew.

1. Case of the Frontier Dispute (Burkina Faso v. Mali) [1986] ICJ

 The ICJ emphasized respect for existing boundaries and treaty obligations despite
changes in sovereignty.
 Shows the principle that succession does not affect territorial boundaries.
2. Namibia Advisory Opinion (ICJ, 1971)
 The ICJ recognized the continued international legal personality of the territory and
the illegality of South Africa's occupation despite its claim of sovereignty,
emphasizing the importance of legal continuity.
3. Reparation for Injuries Suffered in the Service of the United Nations (1949, ICJ)
  While not strictly about succession, this case highlights state responsibility, which
successor states inherit.
4. Czechoslovakia Dissolution (1993)
 The peaceful split resulted in the Czech Republic and Slovakia becoming new states,
with the Czech Republic recognized as the continuator state.
 Slovakia, as a new state, started afresh with treaty obligations.
5. Kosovo Advisory Opinion (2010, ICJ)
 Though about statehood, this opinion touches on issues of succession and recognition
in cases of secession.

Challenges and Controversies

 Successor States and Debts: Debates arise over how much debt the successor state
should bear, especially when one part becomes richer or poorer.
 Treaty Obligations: Whether a new state should honor predecessor treaties, especially
if they are unfavorable.
 Recognition Issues: Some successor states face challenges in gaining recognition or
UN membership.
 Human Rights Obligations: Successor states are expected to uphold international
human rights standards, complicating transitions.
Rights and Duties Arising Out of State Succession – Expanded
1. Continuation of Treaties
When a new state succeeds to a territory previously governed by another state, a fundamental
question arises: Which treaties bind the successor state? This is governed by complex rules
developed under customary international law and codified partially in the Vienna Convention
on Succession of States in Respect of Treaties (1978).
 Types of Treaties:
o Bilateral treaties often require explicit consent of successor states before they
become binding.
o Multilateral treaties, especially those of a universal character (e.g., human
rights treaties), are more likely to be automatically binding.
 Clean Slate Doctrine:
Newly independent states emerging from decolonization generally follow this
principle, meaning they are not automatically bound by treaties entered into by the
colonial power (e.g., many African states post-independence).
This was recognized in Mozambique v. Portugal (1975), where Portugal was found to
 have violated Mozambique’s territorial integrity post-independence, reinforcing
sovereignty and treaty renewal by successor states.
 Continuity Doctrine:
Successor states arising from the dissolution of a state (e.g., Russia as successor of the
USSR) typically inherit treaty obligations to maintain stability. Russia assumed
USSR’s seat in the UN Security Council and accepted treaty obligations, reflecting
continuity.

2. Succession to State Property and Debts

 State Property:
The successor state inherits ownership rights over assets belonging to the predecessor
state located within its territory or abroad, including embassies, government
buildings, and cultural property.
 State Debts:
Successor states generally assume responsibility for the debts incurred by predecessor
states related to their territory. However, the principle of equitable distribution applies
in cases of dissolution where multiple successor states emerge.
 The Vienna Convention on Succession of States in Respect of State Property,
Archives and Debts (1983) provides guidance, though many states adhere to
principles through negotiation rather than strict legal obligation.

The Alabama Claims arbitration (1872) is a historic example where successor states
negotiated reparations related to debts and damages arising from predecessor states.

3. Diplomatic Relations and International Personality

 A successor state acquires the capacity to enter into diplomatic relations, including
establishing embassies, signing treaties, and participating in international
organizations.
 The successor state inherits international legal personality, meaning it can sue and be
sued, claim immunity, and exercise rights under international law.

When South Sudan became independent in 2011, it had to establish diplomatic relations
afresh and seek membership in international organizations like the UN.

4. Nationality and Citizenship

 Successor states determine who qualifies as nationals or citizens within their territory.
  The laws of nationality must be established to avoid statelessness and to regulate
rights and obligations of the population.
 International human rights norms require that successor states provide nationality to
inhabitants born or residing in the territory.

After the breakup of Yugoslavia, the successor states had to establish new nationality
laws to determine citizenship, affecting millions of people.

5. Respect for Human Rights and International Obligations

 Successor states are expected to uphold existing international obligations, including
respect for human rights and humanitarian law.
 Even if not bound by all predecessor treaties, successor states are subject to customary
international law standards.
 This duty is crucial to maintain international peace and stability.

In the Namibia Advisory Opinion (1971), the ICJ condemned South Africa’s illegal
occupation and emphasized international legal obligations toward the people of Namibia
despite the lack of direct treaty succession.
UNIT 8

Early History Of The Law Of The Sea

Ancient Maritime Customs and the Principle of Mare Liberum (Freedom of the Seas)
The law of the sea traces its origins to ancient maritime customs, trade practices, and
navigational routes that evolved among seafaring civilizations such as the Phoenicians,
Greeks, and Romans. However, it wasn’t until the early modern period that legal theories
about the status of the oceans began to crystallize.
In 1609, Hugo Grotius, a Dutch jurist and philosopher, published his seminal work "Mare
Liberum" (The Free Sea). Grotius argued that the seas were international territory and could
not be claimed by any one nation. He posited that navigation and trade routes across the
oceans should remain free and open to all states, reflecting the principle of freedom of
navigation.
Grotius’ theory was largely a response to Portuguese and Spanish maritime empires, which
sought to monopolize trade routes under the papal bulls and the Treaty of Tordesillas (1494).
"Mare Liberum" became a foundational text for modern international law and significantly
influenced customary rules regarding high seas freedom.
However, Grotius’ views were opposed by contemporaries like John Selden, who in "Mare
Clausum" (The Closed Sea) defended the right of coastal states to claim sovereignty over
adjacent seas. This debate between coastal state sovereignty and navigational freedom
continues to shape modern maritime law.

17th–19th Century: Cannon Shot Rule and Customary Territorial Seas

From the 17th to the 19th century, the general practice recognized that a coastal state’s
sovereignty extended only as far as it could control militarily, commonly symbolized by the
“cannon shot rule”—roughly 3 nautical miles from the shoreline.
This rule, attributed to Cornelius van Bynkershoek (Dutch jurist), reflected a balance: coastal
states exercised limited jurisdiction over nearby waters (for customs enforcement, security,
and fishing), while the rest of the sea remained subject to freedom of navigation.
However, as naval technology and economic interests evolved, many states began to
unilaterally extend their maritime claims beyond the 3-mile limit, particularly for fishing and
natural resource exploitation.

Conflicting Claims and the Need for Codification

By the early 20th century, increasing conflicts over fisheries, maritime boundaries, and
resource rights led to rising tensions between maritime powers (like the UK, USA) and
coastal/resource-rich states (like Latin American and Asian nations).
Notable examples of expanding claims include:
 Chile and Peru claiming a 200-mile zone as early as the 1940s.
 Truman Proclamation (1945) by the USA, asserting jurisdiction over the continental
shelf.
These growing tensions and overlapping claims emphasized the need for comprehensive
codification of the law of the sea under international law.

GENEVA CONVENTIONS ON THE LAW OF THE SEA (UNCLOS I, 1958)

Background
Held under the auspices of the United Nations International Law Commission (ILC), the First
United Nations Conference on the Law of the Sea (UNCLOS I) convened in Geneva in 1958.
Conventions Adopted
UNCLOS I produced four key conventions, which reflected customary practices at the time:
1. Convention on the Territorial Sea and Contiguous Zone
 o Codified rules on territorial sovereignty and control of adjacent waters.

o However, it did not resolve the issue of the breadth of the territorial sea, which
remained controversial.
2. Convention on the High Seas
o Reaffirmed the freedom of the seas principle.

o Outlined state responsibilities on the high seas (e.g., suppression of piracy,

assistance to ships in distress).
3. Convention on the Continental Shelf
o Recognized coastal state rights to explore/exploit resources on the continental
shelf, even beyond the territorial sea.
4. Convention on Fishing and Conservation of Living Resources of the High Seas
o Aimed at preventing overfishing and preserving marine biodiversity through
cooperation.
Despite these conventions, the issue of territorial sea breadth remained unresolved, leading to
further negotiations in UNCLOS II.

UNCLOS II (1960) AND ITS FAILURE

The Second United Nations Conference on the Law of the Sea convened in Geneva in 1960,
primarily to resolve the dispute over the territorial sea breadth (i.e., how many nautical miles
a state could claim).
Key Features and Outcome
 Divisions between:
o Maritime powers (supporting 3–6 nautical miles, to preserve navigational
freedom).
o Coastal/resource-rich states (demanding up to 12–200 nautical miles for
control over fisheries and resources).
 Failure to reach consensus: The proposal for a 12 nautical mile limit failed to achieve
the required two-thirds majority.
The lack of resolution meant continued legal uncertainty and a proliferation of unilateral
maritime claims, prompting the need for a more comprehensive and negotiated solution—
leading to UNCLOS III.

UNCLOS III (1973–1982)

Overview
The Third United Nations Conference on the Law of the Sea (UNCLOS III) was the most
ambitious effort to codify the law of the sea. It involved over 160 states, negotiating over 9
years, resulting in the United Nations Convention on the Law of the Sea (UNCLOS), adopted
in 1982 and entered into force in 1994.
Major Achievements
UNCLOS III created a comprehensive legal framework regulating all aspects of ocean use,
including navigation, environmental protection, resource exploitation, marine scientific
research, and dispute resolution.
Key Provisions and Innovations
 Territorial Sea: Fixed at 12 nautical miles.
 Contiguous Zone: Up to 24 nautical miles for customs, immigration, and sanitation
enforcement.
 Exclusive Economic Zone (EEZ): Up to 200 nautical miles, granting coastal states
sovereign rights over living and non-living resources.
 Continental Shelf: Rights extended to the natural prolongation of the land territory, or
up to 350 nautical miles.
 High Seas: Beyond national jurisdiction, governed by principles of freedom of
navigation, overflight, and peaceful use.
 International Seabed Authority (ISA): Created to regulate mining in the “Area” (deep
seabed beyond national jurisdiction), as the “common heritage of mankind.”
 Dispute Settlement Mechanisms: Established ITLOS (International Tribunal for the
Law of the Sea) and allowed for arbitration and ICJ recourse.

Maritime Zones
INTERNAL WATERS (ARTICLE 8, UNCLOS)
Under Article 8 of the United Nations Convention on the Law of the Sea (UNCLOS),
internal waters are defined as all waters and waterways that are located on the landward side
of the baseline from which the breadth of the territorial sea is measured.
This includes:
 Bays and gulfs wholly within the coast of the state.
 Rivers, lakes, estuaries, and ports.
 Waters enclosed by straight baselines (where applicable under Article 7).
 Canals and other inland waterways that meet the sea.
Internal waters are not considered part of the territorial sea, but are under even stricter control
by the coastal state.

Sovereignty and Legal Status

The coastal state exercises full sovereignty over internal waters, equivalent to its control over
land territory. This means:
 It can enforce laws of all types (criminal, civil, environmental, customs, immigration,
etc.).
  It can regulate access, navigation, and the presence of foreign vessels completely at its
discretion.
 Internal waters are not subject to the right of innocent passage, unlike territorial seas.
This sovereignty extends to airspace above and subsoil below internal waters.
Key point: Internal waters are not subject to any limitations by international law in terms of
foreign vessel movement unless international treaties apply or the state has granted specific
rights.

Right of Innocent Passage Does Not Apply

One of the key features of internal waters is that foreign ships do not enjoy the right of
innocent passage.
This means:
 Unlike in territorial seas (Article 17), where foreign vessels have a right of innocent
passage (so long as it's not prejudicial to the peace, good order, or security of the
coastal state), in internal waters, such right exists only if explicitly granted.
 Coastal states can refuse entry to any foreign vessel without providing justification,
except where there’s a treaty obligation (e.g., international straits or prior agreement).
 Warships, in particular, may be refused entry into internal waters, and if they enter
without consent, the coastal state may demand immediate departure or even take
enforcement action.

Relevance of Baselines
The extent of internal waters is defined by the drawing of baselines, as per Articles 5 to 7 of
UNCLOS. There are two key types:
 Normal baselines: The low-water line along the coast.
 Straight baselines: Used in cases of deeply indented coasts or fringe of islands,
enclosing waters that would otherwise be part of the territorial sea or high seas.
If a state uses straight baselines, the waters enclosed landward of them become internal
waters, thereby extending sovereign control significantly.
However, abusive use of straight baselines can be challenged, especially if it encloses large
areas of sea used for international navigation.
Anglo-Norwegian Fisheries Case (1951)
 Facts: The UK challenged Norway's use of straight baselines along its deeply
indented coastline, arguing it was inconsistent with international law.
 Ruling: The International Court of Justice (ICJ) upheld Norway’s use of straight
baselines, noting that:
o The baselines followed a closely linked geographical and historical pattern.

o The method was not arbitrary and was in line with long-standing practice.

o Other states had acquiesced to Norway’s claims over time.

Significance: This case set a precedent for the use of straight baselines, indirectly impacting
the scope of internal waters under Article 8. The decision clarified that coastal geography
and historical practice are important in determining baseline legality.

Modern Challenges
 Enclosed Bays: Disputes sometimes arise over whether a bay is truly internal or part
of the territorial sea (see Article 10, UNCLOS). The "semi-circle test" is used to
determine the legitimacy of claims.
 Artificial Islands: Issues have arisen over states attempting to claim waters around
artificial islands (e.g., South China Sea disputes), though such features do not
generate internal waters under UNCLOS.
 Climate Change: Rising sea levels may impact baseline determination and thereby the
status of internal waters—a growing area of legal uncertainty.

TERRITORIAL SEA (Articles 2–3, 12–24 UNCLOS)

Definition and Scope (Article 3)
The territorial sea refers to the belt of sea adjacent to a state’s coast, extending up to 12
nautical miles from the baseline (typically the low-water line along the coast), as provided
under Article 3 of UNCLOS.
This area is fully under the sovereignty of the coastal state, just like its land territory.

Extent of Sovereignty (Article 2)

According to Article 2, sovereignty of the coastal state in the territorial sea extends to:
 The water column
 The seabed and subsoil
  The airspace above
This sovereignty, however, is subject to certain rights of other states, especially the right of
innocent passage for foreign ships.

Right of Innocent Passage (Article 17)

Article 17 provides that ships of all states, including warships, enjoy the right of innocent
passage through the territorial sea.
"Innocent passage" means the right to traverse the territorial sea without entering internal
waters or calling at a port, or proceeding to or from internal waters or ports — as long as the
passage is innocent (i.e., not prejudicial to the peace, good order, or security of the coastal
state).
This right is recognized under customary international law as well as treaty law.

INNOCENT PASSAGE – Detailed Rules (Article 19)

What Constitutes “Innocent”
According to Article 19(1), passage is innocent as long as it is:
 Continuous and expeditious
 Not involving any activity other than that which is incidental to normal navigation
Activities That Render Passage Non-Innocent (Article 19(2))
Passage is not innocent if it involves:
 Threat or use of force against the coastal state
 Weapons exercises, launching or taking on board of weapons
 Spying or intelligence gathering
 Acts of propaganda
 Launching or landing aircraft
 Fishing activities
 Polluting the marine environment
 Unauthorized research or hydrographic surveys
 Violation of customs, immigration, fiscal, or sanitary laws
 Interference with communications systems
If any of these activities are conducted during passage, the coastal state may take appropriate
measures, including ordering the vessel to leave.

Regulation by Coastal State (Articles 21–24)

 Article 21 allows the coastal state to adopt laws and regulations concerning:
o Safety of navigation

o Protection of navigational aids

o Conservation of marine resources

o Prevention of infringement of customs, immigration, fiscal, and sanitary

regulations
o Prevention of pollution

o Marine scientific research and hydrographic surveys

 Article 22: Coastal states can require foreign ships to use designated sea lanes or
traffic separation schemes.
 Article 23: Nuclear-powered ships and those carrying dangerous substances must
carry documents and take precautions as required.
 Article 25: The coastal state may take necessary steps to prevent passage that is not
innocent, and may temporarily suspend innocent passage in specified areas of its
territorial sea for security reasons, with due notice given.

1. Corfu Channel Case (UK v. Albania), ICJ 1949

 Facts: British warships passed through the Corfu Channel (part of Albanian
territorial sea) without Albania’s permission. Albania laid mines in the channel. The
UK sued Albania before the ICJ.
 Held: The ICJ recognized that there is a right of innocent passage for warships
through international straits, even within territorial seas, provided the passage is
peaceful and does not threaten security.
 Significance: Affirmed the principle of innocent passage, especially through straits
used for international navigation, even for warships, and Albania was held
responsible for the damage.
2. The “Saiga” Case (St. Vincent and the Grenadines v. Guinea), ITLOS 1999
  Facts: Guinea arrested a foreign oil tanker (The Saiga) in its exclusive economic
zone, claiming customs violations.
 Held: The International Tribunal for the Law of the Sea (ITLOS) ruled that Guinea
had no jurisdiction to enforce customs laws in the EEZ, and emphasized the
importance of respecting freedom of navigation and the rules governing innocent
passage.
 Relevance: Although primarily about EEZs, the case reinforced the principle that
coastal state rights must be exercised in accordance with UNCLOS.

Temporary Suspension of Innocent Passage (Article 25(3))

The coastal state has the right to suspend innocent passage temporarily in specific areas of its
territorial sea, if it is essential for national security, e.g., during military exercises.
Conditions:
 The suspension must be temporary.
 The suspension must be in specified areas only, not the entire territorial sea.
 Due notice must be given to mariners (e.g., through Notices to Mariners or
international bulletins).

Balance Between Sovereignty and Navigation

UNCLOS establishes a delicate balance between:
 The sovereignty of coastal states (Articles 2–3), and
 The rights of navigation of other states (Article 17 onwards).
This balance ensures both the security of coastal states and the freedom of maritime traffic,
crucial for international trade and diplomacy.

CONTIGUOUS ZONE (ARTICLE 33, UNCLOS)

Under Article 33 of the United Nations Convention on the Law of the Sea (UNCLOS), the
Contiguous Zone is a maritime zone contiguous (adjacent) to the territorial sea, extending up
to 24 nautical miles from the baseline from which the breadth of the territorial sea is
measured.
 The first 12 nautical miles from the baseline form the Territorial Sea.
 The next 12 nautical miles (i.e., from 12 to 24 nm) constitute the Contiguous Zone.
Thus, the contiguous zone lies outside the territorial sea but within 24 nautical miles of the
baseline.

Purpose of the Contiguous Zone (Article 33(1))

The coastal state does not have full sovereignty over the contiguous zone (unlike territorial
waters), but it does enjoy a limited form of control.
Specifically, the coastal state may exercise control necessary to:
(a) Prevent infringement of its:
 Customs laws
 Fiscal laws
 Immigration laws
 Sanitary laws
…within its territory or territorial sea.
(b) Punish infringement of the above laws already committed within its territory or territorial
sea.
These are commonly referred to as C-F-I-S powers (Customs, Fiscal, Immigration, Sanitary).

Legal Status and Jurisdiction

 The coastal state does not enjoy full sovereignty in the contiguous zone, but it may
take necessary enforcement measures related to C-F-I-S matters.
 This enforcement authority includes boarding, inspecting, arresting, and seizing
foreign vessels that are suspected of violating domestic laws.
The contiguous zone is not a sovereign maritime zone, but a functional enforcement zone.

Historical Development
 The concept of the contiguous zone predates UNCLOS and appeared in early 20th-
century treaties.
 Before UNCLOS, many states claimed a 12-mile contiguous zone for enforcing
customs and immigration laws.
 The 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone also
recognized this enforcement zone.
 UNCLOS (1982) codified and extended the maximum limit to 24 nautical miles.
Importance and Practical Uses
Coastal states use the contiguous zone to:
 Intercept smuggling and illegal trafficking before it reaches territorial waters.
 Prevent illegal immigration, such as by intercepting boats before they land.
 Enforce quarantine or public health measures (e.g., COVID-19 protocols).
 Protect against fiscal evasion, such as illegal unloading of goods.

Limitation of Powers
The jurisdiction in the contiguous zone is strictly limited to the purposes listed in Article 33.
The coastal state cannot regulate navigation or exercise criminal jurisdiction over unrelated
matters (e.g., fishing rights or environmental protection) — such powers exist only in the
territorial sea or EEZ under specific conditions.

1. United States v. Louisiana (1960) – U.S. Supreme Court

 Context: Though not international, the case addressed state vs. federal rights over
offshore zones.
 Finding: Reinforced federal control over contiguous maritime zones and the
importance of clearly defined jurisdiction for fiscal and customs enforcement.
2. M/V Saiga (No. 2) Case (St. Vincent v. Guinea), ITLOS 1999
 Facts: Guinea seized a foreign oil tanker (M/V Saiga) outside its territorial sea, in its
claimed customs enforcement zone.
 Issue: Guinea argued that it had a right to enforce customs laws in the zone.
 Held: The International Tribunal for the Law of the Sea (ITLOS) ruled that Guinea’s
seizure violated UNCLOS, as it occurred beyond the 24-nautical-mile contiguous
zone. The seizure was unlawful under international law.
Significance:
 Affirmed that a state’s right to exercise enforcement in the contiguous zone is limited
both in scope (C-F-I-S only) and distance (up to 24 nm).
 Reinforced the importance of compliance with UNCLOS limits on jurisdiction.

Relation with Other Zones

  Territorial Sea (0–12 nm): Full sovereignty
 Contiguous Zone (12–24 nm): Limited enforcement jurisdiction
 Exclusive Economic Zone (EEZ) (up to 200 nm): Sovereign rights for economic
purposes (not full sovereignty)
The contiguous zone acts as a buffer zone, where the coastal state protects its sovereignty by
preventing violations before they reach its territorial sea or land.

Contiguous Zone in National Legislation

Many coastal states have incorporated the contiguous zone into their national laws.
Examples:
 India: Section 5 of the Maritime Zones Act, 1976 defines the contiguous zone
extending to 24 nm, where the Indian government can exercise powers related to C-F-
I-S laws.
 United States: President Reagan extended the U.S. contiguous zone from 12 to 24 nm
in 1999 for customs, immigration, and sanitary enforcement.

Exclusive Economic Zone (Eez)

(Articles 55–75 of the United Nations Convention on the Law of the Sea – UNCLOS)

The Exclusive Economic Zone (EEZ) is a maritime zone extending from the outer edge of the
territorial sea (12 nautical miles) up to 200 nautical miles from the coastal baseline. It was
formally recognized under Part V (Articles 55 to 75) of UNCLOS (1982).
The concept was developed to strike a balance between the interests of coastal states and
maritime powers by allowing for economic control without granting full sovereignty.

Nature of Coastal State Rights in the EEZ (Article 56)

In the EEZ, the coastal state does not enjoy full sovereignty, but it does have sovereign rights
and jurisdiction for specific purposes:
(A) Sovereign Rights
These include rights to:
 Explore and exploit natural resources (both living and non-living) in the water
column, seabed, and subsoil.
 Conserve and manage marine resources.
 Conduct marine scientific research.
 Use and regulate the production of energy from water, currents, and wind.
(B) Jurisdiction
The coastal state has jurisdiction over:
 Marine scientific research.
 Protection and preservation of the marine environment.
 Establishment and use of artificial islands, installations, and structures.

Rights of Other States in the EEZ (Article 58)

While the coastal state has extensive rights in the EEZ, it is not a zone of total exclusion.
Other states retain certain freedoms, such as:
 Freedom of navigation (e.g., movement of ships, including warships).
 Freedom of overflight (e.g., aircraft crossing).
 Laying submarine cables and pipelines, subject to the consent of the coastal state for
routing on the continental shelf.
These rights must be exercised with due regard to the rights and duties of the coastal
state.

EEZ: RIGHTS AND DUTIES OF COASTAL STATES

1. Rights Regarding Fisheries and Living Resources (Article 61)
 Coastal states have the exclusive right to regulate and authorize fishing in the EEZ.
 They are empowered to set catch limits, grant fishing licenses, and take steps to
conserve marine biodiversity.
2. Duty to Prevent Over-Exploitation
 Coastal states must determine the allowable catch of living resources in their EEZ and
take necessary steps to ensure sustainable harvesting.
 Over-exploitation is strictly prohibited, and there is a legal obligation to maintain fish
stocks at sustainable levels.
3. Duty to Cooperate (Article 63)
 If the same stock of fish (or associated species) occurs in the EEZs of two or more
coastal states, they are obliged to cooperate directly or through regional fisheries
organizations.
 This is particularly relevant in highly migratory species (e.g., tuna, sharks).
4. Obligation to Protect the Marine Environment (Article 61(2))
 Coastal states are required to take measures to:
o Prevent pollution from ships, seabed activities, and land-based sources.

o Protect endangered marine species.

o Promote marine scientific research aimed at sustainable use.

1. Guyana v. Suriname (2007), PCA Arbitral Tribunal

 Issue: Maritime boundary delimitation and rights to resources in the EEZ.
 Finding: The tribunal emphasized the need for both parties to respect each other's
EEZ rights and avoid unilateral drilling or exploration.
 Relevance: Reinforced the principle that exploration of resources without an agreed
boundary is a breach of the duty to cooperate under UNCLOS.

2. Southern Bluefin Tuna Cases (Australia and New Zealand v. Japan, ITLOS Provisional
Measures, 1999)
 Issue: Overfishing of the Southern Bluefin Tuna stock.
 Finding: ITLOS ordered provisional measures requiring the parties to refrain from
fishing beyond previously agreed quotas.
 Relevance: Demonstrated the obligation of states to cooperate in conserving fish
stocks under Article 63 and avoid over-exploitation.

3. Mauritius v. United Kingdom (Advisory Opinion of ITLOS Special Chamber, 2015)

 Issue: Legality of UK’s declaration of a marine protected area in the Chagos
Archipelago EEZ.
 Finding: Found that the UK’s action was not consistent with the duty to consult and
respect the sovereign rights of Mauritius.
  Relevance: Emphasized the jurisdictional limits and environmental obligations within
the EEZ.

Practical Implications of the EEZ

 Coastal states derive economic benefit from offshore energy production (e.g., wind
farms, oil drilling).
 Disputes over EEZ boundaries have become common due to overlapping claims,
particularly in:
o South China Sea (China, Philippines, Vietnam, etc.).

o Eastern Mediterranean (Greece, Turkey, Cyprus, Israel).

 The EEZ allows strategic security and environmental regulation, without turning
international waters into national territory.

Continental Shelf (Articles 76–85, UNCLOS)

The continental shelf is defined as the natural prolongation of the land territory of a coastal
state into the seabed and subsoil of the adjacent marine area. It is geologically part of a state’s
landmass and may extend well beyond the 200 nautical mile Exclusive Economic Zone
(EEZ) under specific conditions.
 Minimum extent: 200 nautical miles from the baseline, irrespective of the geological
structure.
 Maximum extent: Up to 350 nautical miles or 100 nautical miles from the 2,500 meter
isobath (depth contour), depending on the geological and geomorphological
characteristics of the seabed.
 Commission on the Limits of the Continental Shelf (CLCS): Coastal states seeking to
extend beyond 200 nm must submit scientific data to the CLCS, which makes
recommendations on the outer limits of the shelf.
Note: The extended shelf is only recognized upon CLCS validation, but the state retains its
rights from the moment of claim.
Legal Status and Rights (Article 77)
Coastal states have sovereign rights (not full sovereignty) over the continental shelf for the
purpose of exploring and exploiting its natural resources, which include:
 Mineral and other non-living resources of the seabed and subsoil (e.g., oil, gas,
polymetallic nodules).
 Sedentary species of the seabed, such as shellfish or corals.
These rights:
 Exist ipso facto and ab initio—they do not depend on occupation or declaration.
 Do not affect the legal status of the superjacent waters (i.e., the water column) or the
airspace above.
 Are exclusive: no one else may exploit the resources without express consent.

Legal Restrictions and Freedoms

 No sovereignty over the water column or marine life in the EEZ beyond sedentary
species.
 Other states retain freedom of:
o Navigation

o Overflight

o Laying submarine cables and pipelines (with due regard to coastal state’s
rights)

Continental Shelf Delimitation (Article 83)

Overlapping Continental Shelves
Where two states’ claims to the continental shelf overlap, delimitation must be achieved by
agreement, according to:
 International law
 Equitable principles
 Relevant circumstances (e.g., geography, coastal length, natural prolongation,
historical usage)
If no agreement is possible, states are encouraged to settle disputes through:
 Peaceful negotiation
  International adjudication (e.g., ICJ or ITLOS)
 Arbitration under Annex VII of UNCLOS

Key Legal Principles in Delimitation

 Equidistance/relevant circumstances rule: Draw an equidistant line, then adjust based
on fairness.
 Non-encroachment: A state’s continental shelf should not project into the natural
prolongation of another.
 Proportionality: Compare the length of relevant coastlines to the shelf area claimed.

North Sea Continental Shelf Cases (Germany v. Denmark; Germany v. Netherlands) – ICJ,
1969
 Principle: The Court held that equidistance is not a binding rule of customary
international law, and instead emphasized equitable principles.
 Introduced the idea of “natural prolongation” of the landmass into the sea as a legal
justification for continental shelf rights.
 Impact: Laid down equity-based delimitation principles, focusing on fairness rather
than strict geometrical divisions.
HIGH SEAS (Articles 86–115, UNCLOS)
The High Seas refer to all parts of the sea not included in the Exclusive Economic Zone
(EEZ), territorial sea, internal waters, or archipelagic waters of a state. They are areas beyond
national jurisdiction—no state exercises sovereignty or exclusive rights over these waters.
 Typically, these waters lie beyond 200 nautical miles from the baseline.
 The High Seas cover the vast majority of the world's oceans.

2. Freedom of the High Seas (Article 87)

The High Seas are governed by the principle of freedom, which includes the following key
freedoms available to all states:
 Freedom of navigation: Ships of all states may navigate freely without interference.
 Freedom of overflight: Aircraft of any state may fly over the High Seas.
 Freedom to lay submarine cables and pipelines.
 Freedom to construct artificial islands and other installations permitted under
international law.
  Freedom of fishing: Subject to conservation measures agreed internationally.
 Freedom of scientific research: States may conduct marine scientific research,
respecting the rights of coastal states in adjacent areas.
These freedoms must be exercised with due regard for the rights of other states and
obligations under international law.

3. Prohibition of Sovereignty Claims (Article 89)

No state may validly claim sovereignty or territorial rights over any part of the High Seas.
This principle prevents the appropriation of open ocean areas by any single state.
 The High Seas remain a global commons available for use by all states.
 This rule preserves the international character of the oceans beyond national
jurisdiction.

Legal Status and Jurisdiction on the High Seas

 Ships on the High Seas are subject to the jurisdiction of their flag state (the state
whose flag they fly).
 Flag states are responsible for ensuring that their vessels comply with international
rules.
 Other states may only exercise jurisdiction in specific cases authorized by UNCLOS
(e.g., piracy, slave trade).

Crimes and Enforcement on the High Seas

Article 110 sets out special enforcement rights and obligations to combat crimes that
undermine maritime security:
 Piracy: Any state may seize a pirate ship or aircraft on the High Seas and prosecute
the offenders.
 Slave trade: Similar universal jurisdiction applies to vessels engaged in slave trade.
 Unauthorized broadcasting: States may take action against vessels transmitting
unauthorized radio broadcasts.
 Stateless vessels: Vessels without nationality may be boarded and inspected by any
state.
These enforcement rights ensure that certain serious crimes do not go unchecked due to the
lack of territorial control.
Responsibilities and Cooperation
 States must cooperate to ensure effective control over vessels flying their flags.
 States are encouraged to establish rules to prevent pollution, protect marine
environment, and conserve living resources on the High Seas.
 The International Maritime Organization (IMO) and other bodies play key roles in
regulating safety, security, and environmental standards.

Relevant International Cases and Practice

 The Lotus Case (1927, PCIJ): Established that states are free to act on the High Seas
unless expressly prohibited by international law, reinforcing the principle of freedom
on the High Seas.
 The Case concerning the Continental Shelf (Tunisia/Libya) (ICJ, 1982): Although
more about the continental shelf, it emphasized states’ rights and duties concerning
maritime zones, indirectly reinforcing the concept of freedoms beyond territorial seas.
 Piracy cases: Various prosecutions under universal jurisdiction by states such as
Kenya and the US exemplify enforcement on the High Seas against piracy.
Archipelagic States And Waters (Articles 46–54, Unclos)
An archipelagic state is a state constituted wholly by one or more archipelagos and may
include other islands. An archipelago is defined as a group of islands, including parts of
islands, interconnecting waters, and other natural features which are so closely interrelated
that they form an intrinsic geographical, economic, and political entity.
 Examples of archipelagic states include Indonesia, the Philippines, Maldives, and the
Bahamas.

Archipelagic Baselines (Article 47)

 Archipelagic states are entitled to draw archipelagic baselines, which are straight
baselines connecting the outermost points of the outermost islands of the archipelago.
 These baselines enclose archipelagic waters, which may include the sea, lakes, rivers,
and other bodies of water situated within the baseline.
 The baselines must respect certain criteria:
o The ratio of water to land within the baselines must be between 1:1 and 9:1.

o The baselines must not depart markedly from the general configuration of the
archipelago.
This system allows archipelagic states to claim sovereignty over a wider maritime area that
includes the waters between their islands, unlike other states which have territorial seas only
around individual islands.

Sovereignty over Archipelagic Waters (Article 49)

 Archipelagic waters are treated as internal waters of the archipelagic state, giving the
state sovereignty over these waters similar to its land territory.
 This sovereignty includes rights over the seabed, subsoil, and airspace above the
archipelagic waters.
 However, this sovereignty is subject to the right of innocent passage for foreign
vessels.

Right of Innocent Passage (Article 53)

 Foreign ships enjoy the right of innocent passage through archipelagic waters,
meaning they may navigate through these waters so long as their passage is not
prejudicial to the peace, good order, or security of the archipelagic state.
 Passage is considered innocent if it is continuous and expeditious and does not
involve activities such as weapons exercises, espionage, fishing, or pollution.
 The archipelagic state may adopt laws and regulations relating to innocent passage,
including safety measures and environmental protection.

Archipelagic Sea Lanes Passage (Article 53)

 Archipelagic states must designate sea lanes and air routes through or over
archipelagic waters for the continuous and expeditious passage of foreign ships and
aircraft.
 These sea lanes are especially important for facilitating international navigation and
ensuring the balance between the sovereignty of the archipelagic state and the
interests of other states in maritime transit.
 Foreign vessels and aircraft have the right of archipelagic sea lanes passage through
these designated routes, which allows more freedom than innocent passage, including
overflight and the right to navigate submerged (for submarines).
 The passage must be conducted in a manner not prejudicial to the peace, good order,
or security of the archipelagic state.

International Obligations and Protections

  Archipelagic states are required to respect other states’ rights under international law,
including the freedoms of navigation and overflight.
 They also have the duty to protect the marine environment within their archipelagic
waters.
 Archipelagic states must cooperate with other states to ensure safe navigation and
security in the archipelagic waters.

Relevant International Cases and Practice

 Indonesia’s Archipelagic Baselines Claim (1982): Indonesia was the first state to
formally claim archipelagic status by drawing baselines enclosing its islands. This
claim was initially disputed by other states but was later recognized under UNCLOS
provisions.
 Philippines’ Archipelagic Status: The Philippines also uses archipelagic baselines to
assert sovereignty over waters enclosed between its islands, with rights recognized by
the international community.
 The International Court of Justice (ICJ) and International Tribunal for the Law of the
Sea (ITLOS) have affirmed the principle of archipelagic baselines and sovereignty
subject to innocent passage rights, emphasizing the balance between state sovereignty
and navigation freedoms.

JURISDICTION AND ENFORCEMENT

Types of Jurisdiction
Jurisdiction in international law refers to a state's legal authority over persons, property, or
events. In the context of maritime law, three main types of jurisdiction are recognized:
 Prescriptive Jurisdiction: This is the authority of a state to make laws that apply
within its territory or to certain persons or vessels. In maritime terms, this includes
legislation relating to navigation, resource exploitation, environmental protection, and
safety standards within zones such as territorial seas, EEZs, and continental shelves.
 Enforcement Jurisdiction: This is the authority to enforce laws through actions such as
boarding, inspecting, arresting, or seizing vessels suspected of violations.
Enforcement jurisdiction often depends on the location where the offense occurs and
whether the state’s laws apply there.
 Adjudicative Jurisdiction: This is the authority of courts or tribunals to hear and
decide disputes or criminal cases arising under a state’s laws. For maritime matters,
this could involve prosecution of crimes, disputes over fishing rights, or
environmental damage.
Each jurisdictional power is subject to limitations imposed by international law and treaties,
especially to balance sovereignty with freedoms on the high seas.

Piracy (Articles 101–107, UNCLOS)

 Definition of Piracy: Article 101 of UNCLOS defines piracy as illegal acts of
violence, detention, or depredation committed for private ends by the crew or
passengers of a private ship or aircraft, directed against another ship or aircraft on the
high seas or outside any state's jurisdiction. It includes acts such as robbery, hijacking,
or violence at sea.
 Universal Jurisdiction Over Piracy: Piracy is a unique crime in international law
because of the principle of universal jurisdiction. Any state, regardless of where its
vessels or nationals are from, may capture pirate ships and arrest pirates on the high
seas, and subsequently prosecute them in its own courts. This principle exists to
ensure that piracy, which threatens all maritime nations, can be effectively suppressed.
 Distinction Between Piracy and Armed Robbery:
o Piracy occurs on the high seas or outside territorial waters (beyond 12 nautical
miles).
o Armed robbery at sea takes place within a coastal state's territorial waters and
falls under that state's exclusive jurisdiction.
This distinction affects which authority can respond and prosecute the
offenders.

Enforcement in the Exclusive Economic Zone (EEZ) and Continental Shelf

 Enforcement Powers in EEZ and Continental Shelf (Articles 73 and 78, UNCLOS):
Coastal states enjoy enforcement jurisdiction in their EEZ (up to 200 nautical miles
from baseline) and on their continental shelf (up to 200 nautical miles or more with
certain extensions) to protect their rights and interests, particularly concerning natural
resources.
 Scope of Enforcement:
Coastal states may board, inspect, arrest, and initiate judicial proceedings against
vessels violating laws and regulations related to:
o Conservation and management of living resources (e.g., fisheries regulations).

o Environmental protection (e.g., pollution controls).

o Customs, fiscal, immigration, or sanitary laws (to a limited extent).

 Limitations on Enforcement:
Enforcement jurisdiction in EEZ and continental shelf is limited to the purposes listed
 above and must respect other states’ freedoms of navigation and overflight.
This means coastal states cannot exercise full criminal jurisdiction over foreign
vessels in the EEZ unless the violation concerns resource protection or environmental
laws.
 Due Process and Fair Treatment:
Coastal states must ensure that enforcement actions comply with international
standards of due process, including humane treatment, prompt judicial review, and
respect for procedural fairness.

Relevant Case Law and Examples

 The “SS Lotus” Case (France v. Turkey, PCIJ, 1927):
Although predating UNCLOS, this case established the principle that states have
jurisdiction unless explicitly prohibited by international law. This is a foundational
principle for prescriptive and enforcement jurisdiction in maritime law.
 The “Arctic Sunrise” Case (Netherlands v. Russia, ITLOS, 2013):
The tribunal ruled on enforcement jurisdiction in the EEZ, emphasizing that
enforcement measures must be proportional and comply with due process, even if the
coastal state has the right to enforce its laws in its EEZ.
 The “Case Concerning Maritime Delimitation and Territorial Questions between
Qatar and Bahrain” (ICJ, 2001):
This case clarified jurisdiction and sovereign rights concerning maritime boundaries
and enforcement responsibilities between neighboring coastal states.

Common Heritage Of Mankind And Deep Seabed Mining

Concept of Common Heritage of Mankind
The principle of Common Heritage of Mankind is a foundational concept in international law,
especially regarding resources beyond national jurisdiction, such as the deep seabed beyond
coastal state limits.
 It means that certain global commons—natural resources beyond the sovereignty of
any one state—are held collectively by humanity as a whole.
 No state, company, or individual can claim exclusive ownership over these resources.
 The principle emphasizes equitable sharing of benefits arising from the exploitation of
these resources, preservation for future generations, and cooperation in management.
This principle is embodied in the United Nations Convention on the Law of the Sea
(UNCLOS), particularly with regard to the Area—the seabed and ocean floor beyond the
limits of national jurisdiction.
Deep Seabed Mining
 The deep seabed refers to mineral-rich areas of the ocean floor beyond the limits of
national jurisdiction, often at depths of 200 meters or more.
 These areas contain valuable minerals such as polymetallic nodules, cobalt-rich
crusts, and massive sulfides containing copper, nickel, cobalt, and rare earth elements.
 Deep seabed mining is technologically challenging and environmentally sensitive due
to the unique ecosystems involved.
The common heritage principle governs the exploration and exploitation of these seabed
resources, requiring that their use benefits all mankind, not just the exploiting entities.

International Seabed Authority (ISA)

Established under UNCLOS (Articles 157–168), the International Seabed Authority (ISA) is
the international organization responsible for regulating seabed mining activities beyond
national jurisdiction.
 Functions of ISA:
o Regulates exploration and exploitation of mineral resources in the Area.

o Issues contracts and licenses to states and private entities for seabed mining
operations.
o Ensures environmental protection measures are observed to minimize
ecological damage.
o Oversees benefit-sharing arrangements to ensure equitable distribution of
mining profits globally.
o Facilitates technology transfer and capacity building, especially for developing
countries.
o Balances interests of developed and developing states through inclusive
governance.
 The ISA represents a unique model of international cooperation over a global
commons resource.

Agreement on Part XI (1994)

  Originally, the deep seabed mining provisions in UNCLOS (Part XI) were criticized
by some developed countries as too restrictive or unfavorable for private investment.
 To address these concerns and facilitate wider acceptance and ratification of
UNCLOS, the Agreement on Part XI was adopted in 1994.
Key modifications included:
 Streamlining licensing procedures to encourage investment by private companies.
 Clarifying the commercial viability and legal certainty of contracts issued by the ISA.
 Strengthening environmental safeguards but balancing them with development
incentives.
 Reassuring developed states that their investments would be protected under
international law.
This Agreement was pivotal in encouraging major maritime powers such as the United States
to move towards UNCLOS ratification.

Biodiversity Beyond National Jurisdiction (BBNJ)

While the deep seabed is governed by the ISA and UNCLOS, marine biodiversity in areas
beyond national jurisdiction (ABNJ) is increasingly recognized as needing additional
protection due to growing human activities such as fishing, shipping, and seabed mining.

BBNJ Agreement (2023) Overview

 The BBNJ Agreement, adopted in 2023, is a new international treaty developed under
the United Nations framework.
 It aims to protect marine biodiversity in the high seas and deep oceans beyond the
limits of national jurisdiction.
 The Agreement implements and complements UNCLOS environmental mandates,
focusing specifically on biodiversity conservation.
Key features include:
 Marine Genetic Resources: Regulation of access to and benefit-sharing from genetic
material found in marine organisms beyond national jurisdiction. This addresses
concerns over bioprospecting and equitable sharing of benefits from commercial or
scientific uses.
 Area-Based Management Tools (ABMTs): Mechanisms to designate marine protected
areas and regulate activities to preserve sensitive ecosystems and habitats.
  Environmental Impact Assessments (EIAs): Requirements for assessing and
minimizing the environmental impacts of proposed activities in ABNJ before they
proceed.
 Capacity Building and Technology Transfer: Assistance to developing states to
participate effectively in conservation and sustainable use efforts.
The BBNJ Agreement represents a major step forward in international cooperation for ocean
governance, filling gaps not fully addressed by UNCLOS, particularly regarding biodiversity.

Important Law Of The Sea Cases

1. Philippines v. China (South China Sea Arbitration), PCA, 2016
 Background:
The Philippines initiated arbitration under Annex VII of UNCLOS against China
concerning maritime entitlements and disputes in the South China Sea. The key issue
was China’s claim based on the so-called “nine-dash line,” which covers most of the
South China Sea and overlaps with the Philippines’ Exclusive Economic Zone (EEZ).
 Legal Issues:
o Legitimacy of China’s historic rights claims within the nine-dash line.

o Validity and scope of maritime entitlements to islands, rocks, and features

under UNCLOS.
o Lawfulness of Chinese activities like island-building and interference with
Philippine fishing and energy exploration.
 Outcome:
o The Permanent Court of Arbitration (PCA) ruled largely in favor of the
Philippines.
o It rejected China’s historic rights claims as incompatible with UNCLOS.

o Clarified that many maritime features claimed by China did not qualify for full
EEZ or continental shelf rights but only territorial seas or none at all (e.g.,
rocks incapable of sustaining human habitation).
 o Emphasized UNCLOS Part XV mechanisms for peaceful dispute resolution
and condemned China’s actions as violations of the Philippines’ sovereign
rights.
 Significance:
o Landmark case clarifying UNCLOS maritime entitlements and limiting
excessive maritime claims.
o Reinforced international legal order and dispute resolution under UNCLOS
despite China’s non-acceptance of the ruling.
o Provided legal clarity for smaller coastal states in maritime disputes with
major powers.

2. Bangladesh v. Myanmar (Bay of Bengal Maritime Boundary Delimitation), ITLOS & PCA,
2012
 Background:
Bangladesh and Myanmar submitted their maritime boundary dispute in the Bay of
Bengal to the International Tribunal for the Law of the Sea (ITLOS) and later to the
PCA for delimitation of EEZ and continental shelf boundaries.
 Legal Issues:
o Determination of the maritime boundary in an area with complex coastal
geography.
o Application of equitable principles and relevant circumstances in delimiting
overlapping EEZ and continental shelf claims.
 Outcome:
o ITLOS issued the first-ever judgment on maritime delimitation in 2012.

o The Tribunal applied a three-step delimitation approach: provisional

equidistance line, adjustment based on relevant circumstances to achieve
equity, and final boundary line establishment.
o Recognized the need for cooperation and joint submission of maps to avoid
future disputes.
 Significance:
o Set an important precedent for maritime boundary delimitation based on
equity rather than rigid equidistance.
 o Strengthened ITLOS’s role as an impartial adjudicator in maritime disputes.

o Encouraged states to seek peaceful settlement and joint cooperation in

complex maritime areas.

3. Ghana v. Côte d’Ivoire (Atlantic Ocean Maritime Boundary), ITLOS & PCA, 2017
 Background:
Ghana and Côte d’Ivoire had a longstanding maritime boundary dispute in the
Atlantic Ocean, particularly concerning rights to oil-rich offshore areas.
 Legal Issues:
o Delimitation of overlapping claims to EEZ and continental shelf areas.

o Consideration of special circumstances such as coastal geography and

proportionality in delimitation.

 Outcome:
o ITLOS and PCA applied equitable principles to adjust the provisional
equidistance line.
o The Tribunal considered relevant factors like coastal concavity and
population distribution to arrive at a fair boundary.
o The judgment effectively balanced natural prolongation and equitable access
to resources.
 Significance:
o Reinforced the flexible, equitable approach to maritime delimitation rather
than strict geometric lines.
o Demonstrated ITLOS’s effective role in resolving boundary disputes impacting
valuable marine resources.
o Promoted legal certainty and cooperation in West African maritime zones.

4. M/V Saiga (Saint Vincent and the Grenadines v. Guinea), ITLOS, 1999
 Background:
The M/V Saiga, an oil tanker flying the flag of Saint Vincent and the Grenadines, was
seized by Guinea in the EEZ for alleged illegal fishing activities. The vessel was
detained and crew arrested.
 Legal Issues:
 o Extent of coastal state enforcement jurisdiction in the EEZ under UNCLOS.

o Legality of the detention and application of the “hot pursuit” doctrine (Article
111 UNCLOS).
o Right to prompt release of detained vessels and crew under Article 292
UNCLOS.
 Outcome:
o ITLOS confirmed that Guinea had jurisdiction to enforce laws in the EEZ but
must respect freedom of navigation and due process.
o Clarified conditions and limits on the right of hot pursuit.

o Ordered Guinea to release the vessel and crew promptly upon posting a
reasonable bond.
 Significance:
o Set key precedents on enforcement powers of coastal states in the EEZ
balanced with protection of navigation rights.
o Clarified the procedural safeguards protecting vessels detained for alleged
violations.
o Highlighted the role of ITLOS in resolving urgent maritime disputes and
protecting flag state interests.