Given that states themselves are territorially-defined entities, the requirement of having a defined territory is arguably the most important provision of statehood. In the words of Philip Jessup before the UN Security Council, with regard to the admission of Israel as a Member- State: “[T]he reason for the rule that one of the necessary attributes of a State is that it shall pos-
sess territory is that one cannot contemplate a State as a kind of disembodied spirit”.143
There does appear, however, to be a certain amount of flexibility allowed in considering the territory of a state as having been ‘defined’. Again, the US Restatement provides a foundation for deeper discussion, through the provisions of §201:
An entity may satisfy the territorial requirement for statehood even if its boundaries have not been finally settled, if one or more of the boundaries are disputed, or if some of its terri- tory is claimed by another state. An entity does not necessarily cease to be a state even if all of its territory has been occupied by a foreign power or if it has otherwise lost control of its territory temporarily.144
Prior to the formulation of the Montevideo Convention, some commentators were of the opinion that a fixed territory was not essential for the existence of ‘statehood’ per se,145 a relatively
understandable position given the roughly concurrent historical evolution away from empires into fixed states in some regions. A more nuanced view can be seen later on, in returning to Jes- sup’s statement regarding Israel before the Security Council, namely that that strict definition of territorial limits has not been seen as an absolute prerequisite for the acceptance of statehood. He said:
One does not find in the general classic treatment of this subject any insistence that the ter- ritory of a State must be exactly fixed by definite frontiers. We all know that, historically, many States have begun their existence with their frontiers unsettled. Let me take as one ex- ample, my own country, the United States of America. Like the State of Israel in its origin, it had certain territory along the seacoast. It had various indeterminate claims to an extended territory westward. But, in the case of the United States, that land had not even been ex-
143 Jessup, supra note 136, at 12.
144 Similarly, Cf. Id. at § 201, reporter’s note 1, citing Israel in 1948, Kuwait in 1963 and Estonia, Latvia and Albania in 1919 as similar examples of highly contested ‘states’.
145 See e.g. H. Kelsen, Das Problem der Souveränität (1920), at 70-76, J. Salmond, Jurisprudence (7th ed., 1924) and C. Donati, Stato e territorio (1924) at 27-30.
plored, and no one knew just where the American claims ended and where French and Brit- ish and Spanish claims began. To the North, the exact delimitation of the frontier with the territories of Great Britain was not settled until many years later. And yet, I maintain that, in the light of history and in the light of the practice and acceptance by other States, the exis- tence of the United States of America was not in question before its final boundaries were determined.146
Nevertheless, it must also be recognised that, at that time of his statement, great portions of the planet remained under colonial rule which, upon being broken up, solidified territorial definition, as internal colonial administrative boundaries were transformed into international frontiers. In a more historical framework, the process of ‘civilising the uncivilised’, through the incorporation of lands seen as terra nullius into the European positivist international legal sys- tem, brought those territories into the domain of fixed territoriality in the first instance.
One would be hard-pressed to identify any particular territory in a contemporary context
which has yet to be ‘discovered’ and subsequently ‘occupied’ per se: the odds of any new, habit-
able land mass on the planet suddenly emerging for the first time seem remarkably low. A re- flection of this is the use of cession during times of colonialism as an often-repeated tool for territorial incorporation. Simply put, the practical effects of global colonialism and de- colonisation cannot be ignored, and all bits of territory on the globe have now been ‘discov- ered’. Thus Jessup’s comment regarding the historical allowance of the birth of states with unset-
tled frontiers seems not inaccurate, but relegated primarily to a historical perspective.147 In a
contemporary perspective, to do so would necessitate putting an acceptable claim of statehood to the international community for an entity with an open-ended territorial definition; as such, an entity would be, in nomenclature and actual fact, ‘undefined’. But it is difficult to see how this would be possible, if all global territories have, in some manner or other, been heretofore ‘de- fined’. Jessup’s point regarding the lack of certainty of delimitation of American, versus French, versus British, versus Spanish claims to territory must be seen as of decreased relevance in a con- temporary context, because to allow such extreme definitional latitude is akin to providing an open invitation for perpetual allegations of violations of the purported territorial limits (and, therefore, the sovereignty and statehood itself) of the purported ‘state’.
That is not to say, however, that such a contemporary preclusion of the existence of ‘open-frontier’ statehood would apply to circumstances involving relatively more definition of the territorial limits of the state than observed, in the historical cases of the United States or Is- rael. Such would be the case involving, for example, a border dispute, or, perhaps, a dispute in- volving something less than the totality of the territory of the entire state. Under such circumstances, the dictum of the Germano-Polish Mixed Arbitral Tribunal, dating from 1929, is seen as authoritative in determining the appropriate rule, as later confirmed by the ICJ in the North Sea Continental Shelf cases:148
146 Jessup, supra note 136, at 12.
147 It is true that both the existing state of Israel and a future Palestinian state lack defined borders at pre- sent. However, these are the examples which prove the rule, as the circumstance arises, due to a highly specific local conflict. The lack of similar states with undefined borders to such a great magnitude further reinforces this assertion.
148Cf. North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. the Netherlands), 1969 ICJ Rep. 3, 32: “The appurtenance of a given area, considered as an en- tity, in no way governs the precise delimitation of its boundaries, any more than uncertainty as to bounda- ries can affect territorial rights. There is for instance no rule that the land frontiers of a State must be fully delimited and defined […].” The question of Albania’s external borders and its entry into the League of Nations is mentioned herewith; for greater discussion, see Question of the Monastery of Saint-Naorum (Albanian Frontier) (Advisory Opinion), PCIJ Ser. B No. 9, 10. Similarly, see also Article 3, Paragraph 2
Whatever may be the importance of the delimitation of boundaries, one cannot go so far as to maintain that as this delimitation has not been legally effected the State in question cannot be considered as having any territory whatever. The practice of international law and histori- cal precedents point to the contrary. In order to say that a State exists and recognised as such […] it is enough that this territory has a sufficient consistency, even though its bounda- ries have not yet been accurately delimited, and that the State actually exercises independent public authority over that territory. There are numerous examples of cases in which States have existed without their statehood being called into doubt […] at a time when the frontier between them was not accurately traced.149
Thus, as regards the defined territory criterion, it can be concluded that, at the moment of the pronouncement of ‘statehood’, there will exist a geographically-congruous political com- munity reasonably capable of making such a pronouncement. Such a circumstance links the territorial requirement with the population requirement, existing within a reasonably well- defined territorial configuration, even though the territorial boundaries of such an entity might not be completely delimited. Furthermore, the successful establishment of a territorially- defined sovereign state is in many ways a fait accompli, in that future boundary or territorial dis- putes alone do not automatically raise questions of statehood, in that particular state.