The Mururoa Atoll. Photo Credit: NASA
It is for the people to determine the destiny of the territory and not the territory the destiny of the people.(Western Sahara Case)This statement succinctly captures the question of territorial vulnerability because, owing to human interference, the islands were destined to be submerged underwater. International law does not envision a situation where states disappear altogether; it has rules on state succession where one entity will replace another or a new entity emerges, through cession, unification or dissolution. The fundamental question is whether a territory after submerging becomes a terra nulliusand consequentially making it vulnerable to territorial occupation by discovery. Since the world is acquainted with cases of submerging islands, therefore there is no less probability of existing states claiming the territory of submerged islands, if they resurface. The claimant state can claim such territory only through the principle of occupation because cession, prescription, accretion and conquest cannot be invoked because these principles mandate a different set of circumstances.
II. “Occupation” as a mode of acquiring territory
The law on territorial acquisition is not recognized through any treaty principle but is developed through state practice developing into customary international law. This is primarily because of the reason that no territory in the world is a terra nulliusthough territories may be res communis (e.g. Antarctica). Most of the countries have claimed the appropriation of territory in their favour by invoking the principle of occupation. The occupant’s state authority does not derive from a right to control but from the fact of control.
Occupation as a mode of acquisition of a territory has been recognized through the Eastern Greenland case.In the Minquiers and Ecrehoscase, the Court noted that any definitive conclusion as to the sovereignty must ultimately depend on the evidence which relates directly to the possession of these groups and in the Palmas case, recognized titles of acquisition of territorial sovereignty based on occupation. Thus, occupation immediately follows acquisition of title under international law. No other state can lawfully acquire the territory thereafter through occupation, unless the occupying state has either withdrawn from it or has otherwise lost effective presence and control.
III. Discovery as a sine qua non for the principle of occupation
No state appeared to regard mere discovery as being in any way sufficient per se to establish a valid title to terra nullis. The title of discovery exists only as an inchoate title, that is to say, a temporary right to exclude other states until the state of the discoverer has had a reasonable time within which to make an effective occupation, which cannot prevail over a definite title founded on continuous and peaceful display of sovereignty. This inchoate title conferred through discovery perishesunless the State effectively occupiesthe territory.
Therefore, according to prevalent international norms, if the claimant states discovers an island, which was previously submerged in water, the discovery while vest an inchoate title with the claimant state. This in turn would mean that the claimant state has a pre-emptive right to occupy the discovered Island. However, such a claim seems against the principle of ex aecquo et bono because the previous occupant state of a submerged island lost the territory not due to absence of sovereign manifestation but due to divine or climate intervention.
IV. Submerged Islands vis-a-vis terra nullius
To the modes of acquiring sovereignty over territory operations of nature is a corresponding mode of losing it. On the other hand, a territory which once was a state, but has been afterwards abandoned, is a possible object of occupation by another state. (Oppenheim) This might direct us to a conclusion that the Island territory will be considered as a terra nullius after it resurfaces. All regions are considered to be territorium nullius which do not find themselves effectively under sovereignty. The Mexican claim to sovereignty over Clipperton Islandwas rejected holding that Mexico could not prove that Spain had first discovered the island, nor had Mexico effectively occupied the island. By immemorial usage having the force of law, besides the animus occupandi, the actual and not the nominal taking of possession is necessary. Clipperton Island had therefore been terra nullius, as such being susceptible to pacific occupation by France in 1858. In the Minquiers and Ecrelzos case,the original feudal title in respect of the Channel Islands was held to be lost for having lapsed as a consequence of the events of the year 1204 and following years. The Court considered that it was not necessary to deal with pointless historical controversies and judged that the original title ceases to be valid if there are new facts to be considered on the basis of new law.
A careful examination of the maxim terra nulliusand its elements allows us to reach a definitive point that the submerged territory becomes a terra nullius for three reasons. Firstly, the island is not under effective sovereignty. Secondly,mere animus occupandi is not sufficient to show a territory under sovereign control and thirdly,sovereignty over a territory can be lost due to subsequent events i.e. the submergence of islands due to global warming.
V. Continuity of Sovereign Manifestation and Element of Historical allegiance
In Belgium v.Netherlands,Belgium had not ceased to assert its rights and Netherlands’ encroachments were insufficient to supplant Belgian sovereignty. The disputed plots were enclaves in the Netherlands, making it difficult for Belgium to detect the seen croachments upon its sovereignty and exercise its own authority over the plots. State authority should not be perennially displayed over territory as there are necessarily gaps, intermittence in time and discontinuity in space. A State’s inability to prove display of sovereignty as regards such a portion of territory cannot forthwith be interpreted as showing that sovereignty is inexistent. As sovereign manifestation can be discontinuous in nature, after the submergence of Islands, it becomes axiomatic that the previous occupant state cannot exercise sovereignty due to physical impossibility.
Moreover, international territorial claims can be based on culture and history. Thus the impacts of climate change on vulnerable societies will need to be addressed not only as an issue of sovereignty and statelessness but also as a threat to cultural identity. Although effective control presents the strongest claim under property law, historical claims create an underlying entitlement to territory. (Brian Sumner) Historical claims often relate to cultural claims, because the greater the cultural importance of the territory, the stronger the historical claim to it as it includes both priority and duration and expresses the ultimate case of mainland symbiosis.
Though the country which loses the island territory due to an increase in sea levels does not effectively occupy the territory, it can maintain a territorial claim on grounds of historical allegiance. Continuous occupation and sovereignty over a territory does create a historical allegiance and such allegiance can substantiate a territorial claim. However, what is of decisive importance, is not indirect presumptions deduced from events in the Middle Ages, but the evidence which relates directly to the possession of the island groups. In the Western Sahara Case, the method of historical claim was not accepted by the court. In Cambodia v.Thailand,the Parties had also relied on arguments of a physical, historical, religious and archaeological character, but the Court did not regard them as legally decisive. Therefore, the ICJ has not accorded much significance historical allegiance. However, once a territory is submerged in water, it is only the historical allegiance and ties which reflects the geographic continuity. There is no other way through which a state can effectively occupy a submerged territory.
Territorial principles have been long left in an abysmal pit. With no specific treaty principle or a decision by ICJ, territorial vulnerability of Island states has turned into a conundrum which has not been much appreciated by international law. There is a need to revisit the territorial principles to ensure that the submerging Islands which are in a perilous state receive international protection with respect to their territory.
Firstly,the submerged territory should vest with the previous occupant state only and therefore the submerged territory should not be considered as a terra nullius. This will ensure that the submerged territories are not susceptible to occupation. Secondly, the pre-emptive right to occupy of the occupant state should not be applicable in circumstances where the submerged territory is discovered after its resurfacing. Axiomatically, the claimant inchoate title of discovery cannot be attributed to the discovering state. Thirdly, effective possession or sovereign manifestation which is a pre-requisite for a state to invoke the principle of occupation should be relaxed for the previous occupant state of such submerged territory.
This exclusion of sovereign manifestation should be permissible because it is practically impossible for the occupant state to effectively occupy the submerged territory. Therefore, an exception to the principle of occupation should be recognized. The loss of territory, an aftermath of global warming should not be attributed to a particular state because global warming has received global contribution. Therefore, states must actively participate in norm generation which ensures that the fundamental balance of sovereignty and statehood is not left subverted.
By Sameer Gupta & Sankalp Udgata