This article has been written by Akshaya J pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Introduction

A territorial dispute is a conflict that arises between two or more states contesting ownership or sovereignty over a certain part of territory. It can arise for many reasons, such as economic interests, geopolitical aspirations, regional ethnic or cultural variance, and historical legacies that are mainly due to colonialism or imperialism. The disputes can be of various types, such are disputes over land boundaries or natural resources such as oil, water, gas, etc. There can also be disputes over islands or maritime zones. Understanding territorial disputes is essential for policymakers, diplomats, and citizens alike because addressing them requires a lot of legal expertise, political will, and cooperation among the parties who are part of the dispute and the ones who are resolving the dispute. In this article, the historical context, principles of international law, international legal framework, dispute resolution mechanisms and case studies of territorial disputes will be discussed in detail.

Historical context

Knowing the historical context of the territorial disputes is also a key feature in resolving them, as these issues have been there for many centuries or even a millennium. The era of colonialism and imperialism, which spanned from the 16th to the 20th centuries, dramatically changed the boundaries and control of territory, European powers split up the territories of Africa, Asia, and the Americas, mostly ignoring the ethnic, tribal, or cultural boundaries. The impact exists even today, as the process of decolonization began in the 20th century when newly independent states with arbitrary boundaries, which were often drawn by the colonial powers, emerged. Due to the expeditious nature of decolonization and also due to the infliction of artificial borders, many disputes have occurred in the Middle East, South Asia, and Africa.

Principles of international law

Principles of international law are the foundation on which relations between the states are governed. One of the key principles of international law is sovereignty, which states that states have supreme authority, which means the right to govern without any external intervention. The sovereign power is with the people, and it is exercised through their elected representatives. 

Territorial integrity is a principle where the sovereign states can exercise their right to defend their territory from another state; that is, they cannot impose or promote border changes in other sovereign states through force. It collectively goes along with Article VIII- equal rights and the principle of self-determination.

 The principle of non-intervention forbids states from interfering in the internal affairs of other states. Although intervention is possible in some cases, such as during humanitarian crises or with the permission of the United Nations Security Council, there is a constant debate as to when to determine whether interference in another nation’s internal affairs will lead to a violation of international law. 

The principle, Pacta sunt servanda, means parties that signed the treaty must fulfil the treaty in good faith. It talks about the importance of sustaining the commitments made in the conventions and treaties. 

Equality of states means that all states are equal under international law, irrespective of their size, population, or financial power.  Protecting and promoting human rights is one of the fundamental principles of international law. The states are expected to opt to protect and respect the human rights of their citizens within their territory. 

International legal framework

An international legal framework is a system of rules, regulations, treaties, and principles that govern the relations between sovereign states. A few key components of the international legal framework are treaties and agreements, which are formal documents mediated and ratified by the sovereign states and governed by international law. Treaties are known by different names, such as international conventions, treaties, final acts, charters, pacts, or memorandum of understanding (MOUs). Many issues are included while framing the legal framework, including trade, environment, human rights, disarmament, and territorial disputes. Treaties can be bilateral, which is between two sovereign states or multilateral, which are between multiple states. Customary international law refers to legal norms and principles that are developed over time by consistent state implementation. Article 38 of the statute of the International Court of Justice talks about customary international law, it states it as evidence of general practice accepted by law. It is mostly used as a secondary source of law in the court; therefore, it requires both state implementation and opino juris. Therefore for a norm to become a customary international law, the sovereign states must follow it consistently, either explicitly or implicitly, to show they have consented to it. International organisations play a major role in framing the international legal framework by providing a panel for discussions between the states. Examples of international organisations are the International Court of Justice (ICJ), the United Nations (UN), and the World Trade Organisation (WTO). There are also international courts and tribunals that provide a forum for adjudicating disputes between the conflicting states. The International Court of Justice (ICJ), most commonly referred to as the World Court, has jurisdiction to settle matters between  sovereign states. Overall, an international legal framework exists for the regulation of states, for providing a forum to settle disputes between the states, and also to promote cooperation and peace with the states.

Dispute resolution mechanisms

Several mechanisms exist within the international legal framework. One of the common mechanisms used for resolving territorial disputes is adjudication, which involves raising the dispute to an international court or tribunal, which will, in turn, provide a legally binding decision. Examples of these are the International Court of Justice (ICJ)  or regional courts such as the European Court of Justice, which will adjudicate territorial disputes for their respective jurisdictions. 

Arbitration is also another formal process where both parties who are disputing have to submit the details of their dispute to a third party, who will be the arbitrator for the arbitration process. The discussion by the arbitration panel will be binding on both parties, Arbitration is usually preferred as it offers a more systematic and legalistic approach to dispute resolution. International organisations also act as a dispute resolution mechanism, for example, organisations such as the United Nations (UN), or regional bodies such as the Association of Southeast Asian Nations (ASEAN) have played a strategic role in resolving territorial disputes. They mainly provide a diplomatic pillar and a forum for negotiating or arranging peacekeeping missions to resolve territorial disputes and promote stability. 

There is also Track II diplomacy, which includes unofficial, informal, and non-governmental talks between private citizens, such as experts, academics, or groups of individuals that are state actors, for brainstorming solutions and assisting the official actors to resolve the dispute and build trust between parties outside the formal diplomatic medium. Bilateral and multilateral treaties are also established mechanisms for resolving territorial disputes. Examples of these are joint development agreements, mutual recognition agreements, and demarcation treaties, which are used to address the particular details of territorial disputes.

Case studies

There are more than 150 ongoing territorial disputes in the world and complex legal, historical, and political factors play a role in resolving them.

A few examples of them are:

Sovereignty over Certain Frontier Land– Belgium and the Netherlands disputed over enclaves that crossed their border, claiming it based on treaties and effective control. The Court handed the enclaves to Belgium, citing that they were based on a boundary treaty and a commission’s work under it. It also included that the Netherlands did not harm Belgium’s sovereignty by having limited control over the enclave, as its actions that were questioned were local and also happened without Belgium being able to notice or react to them.

Temple of Preach Vihear (Cambodia/Thailand)– Cambodia wanted to claim its ownership of an ancient temple that was on Thailand’s side of the border as set by a treaty with France during Cambodia’s colonisation, although the temple is situated in a particular place where it can only be accessed through Thai territory. The border delineation under the treaty was done by French officials with the approval of Thailand.

Land, Island, and Maritime Frontier Dispute (El Salvador/Honduras, Nicaragua Intervening)-This case was brought to the chamber of the International Court of Justice by El Salvador and Honduras due to the 1980 General Treaty of Peace between them, Nicaragua mediated the case but only dealt with maritime issues. 

Maritime Delimitation and Territorial Questions (Qatar v. Bahrain)– Qatar filed a case against Bahrain regarding a dispute over land on the Qatar Peninsula and two more sets of islands. The court gave the verdict, saying that the entire peninsula rightfully belonged to Qatar as long-standing settlements were dissolving Bahrain’s claims of control as acts of piracy. Concerning the islands, one set was given to Qatar and the other to Bahrain due to the uti possidetis principle, and claims based on other principles were dismissed.

Conclusion

Researching the challenges and diving into future perspectives for the resolution of territorial disputes is very important for protecting and promoting stability and peace in the international forum., A few key challenges are faced while resolving territorial disputes are Historical Grievances where many territorial disputes are firmly established in historical grievances, which makes it difficult to resolve them due to emotional attachments with the disputed territories. Other factors include geopolitical competition, which involves global powers aiming for influence and control over territories that are rich in resources and strategic. There is also a lack of trust, which is mutual distrust among the parties with territorial disputes, which will hamper the process of negotiation and cooperation. There needs to be more Diplomatic Engagement where more efforts and meaningful dialogues are exchanged; this is essential for resolving territorial disputes and also helps in building trust., Many proactive measures should also be taken to avoid future conflicts and a proper international mediation forum should be set up to facilitate peaceful resolution there also needs to be legal clarity, i.e., that legal frameworks should be clarified and ambiguities in the treaties should be resolved. By looking into these challenges and exploring future perspectives, the international community will be able to work towards promoting peace and stability in the global world.

References

• sovereignty | Wex | US Law | LII / Legal Information Institute
• Territorial Integrity – CSCE
• International Judicial Monitor – General Principals
• International Legal Research
• Customary International Law | Oxford Research Encyclopedia of International Studies
• https://www.cartercenter.org/resources/pdfs/news/peace_publications/conflict_resolution/solving_territorial_conflicts.pdf