The Legal Construction of Territory in International Law

This article challenges the conventional understanding of territory in international law by arguing that territory is not a natural or physical given, but a socially and legally constructed concept. Traditionally treated as a core requirement of statehood under the Montevideo Convention, territory has been insufficiently theorised and often misunderstood as a synonym for physical land. Drawing on scholarly literature in geography and political theory, the article critiques the natural understanding of territory, describing it as a ‘territorial trap’, where legal doctrine conflates physical geography with legal status. Instead, territory emerges through socio-political process which leads to certain legal consequences. The article further examines how historical doctrines of territorial acquisition, such as terra nullius , conquest and cession, continue to shape legal doctrine despite being incompatible with contemporary international law. The UN Charter era rules, particularly the prohibition of the use of force, self-determination and territorial integrity, have rendered these historic modes largely obsolete. Territorial entitlement is now a ‘zero-sum’ game, where changes in territorial status are scarce and legally regulated rather than determined by factual possession and effective control. The fact that territorial title is no longer determined by factual possession and effective control also has consequences for the law of statehood. States do not come into existence automatically upon meeting factual conditions reflected in the Montevideo criteria. Instead, statehood is a status derived from the sources of international law, particularly treaties and custom. Overall, the article argues that territory and statehood should be reconceptualised by separating territorial title from factual control and by treating both as products of legal and socio-political processes rather than as pre-legal natural facts. In doing so, the article challenges the view that effective control constitutes territorial entitlement, arguing instead that territorial rights derive from socially-created legal frameworks.