(160) Like private individuals, States too may and do own property.

(161) The first thing [that] a State owns is territory. The relation of a State with territory is so close that a State without definite territory is even inconceivable. Even the de jure rulers in exile possess defined territory to which they lay claim.

(162) By territory is here meant not only the surface of the part of the earth over which a State exercises its jurisdiction, but what is below it and what is above it, comprising land, water and air. Obviously, in ancient times, when science had not developed so much, States laid claim over only so much of the creation of God as they could directly dominate. By the time Islam made its appearance, man had already conquered water as well as the subterranean treasures of Nature such as minerals. Regarding air, there was neither aeroplanes nor radio broadcasts, much less the Sputniks [satellites]. Nevertheless, the Arab jurists believed that everything above or below a territory belonged to it. It was thus that they prohibited the construction of private buildings above or below public bequests such as mosques, schools, etc. With water, we shall have to deal later on. 

(163) No doubt, the theocratic basis of Muslim polity denies a State absolute ownership -- as distinguished from relative ownership or trusteeship for God -- in territory; nevertheless, for all practical purposes, there is no difference between the power of the Muslim State and those of a State which does not believe in God regarding its territory in view of the ultimate ownership of God. It not only implies that human ownership of a Muslim State should be a mere trusteeship and administratorship but also Divine origin of the rights of a sovereign. A sovereign of authority is declared in the words of the Prophet as the "shadow of God and," and whoever despises it despises God Himself. It is to be noted however, that in spite of this Divine appointment, the Muslim ruler is not a despot, just the contrary: he is, first of all, as much subject to the laws of the country (Shariat itself having a Divine origin, and not vaguely but in concrete form of the Qur'an and the Sunnah), and the other Commoners from among His subjects; further, the ruler is maintained in power by the collective might of the community; he may even be deposed by the community on the principle that the Hand of God is on the community" and that "my community cannot agree to a wrong." (Arabic type)

(164) Unlike some other systems of law where the individual owns property in lands as a delegated authority or trustee, all land of the territory being vested in the State, Islamic jurists have opined that every individual owner has the same Divine authority, and the supervising authority of the State is only a symbol or a manifestation of the collective authority of the community. Abu Hanifah, for instance, is reported to have said: "All parts of the Muslim territory are under the authority of the Imam (Ruler) of the Muslims, and his authority is the authority of the community of Muslims."

(165) we have seen that a State always owns territory -- the details of which will be given presently -- yet that is not all. A State may and always does own things other than territory, such as buildings, means of transport, money, stores, books, etc. International law applies to them in so far as their acquisition by one State from another, through pacific or hostile methods, and their disposal are concerned.

(166) But territory, that essence and cream of a State's property, requires further elucidation.

Boundaries

(167) Boundaries have always been a very difficult question to settle in international discourse. They are defined through prescription as well as expressed treaties between the neighbouring States. If there is a river or lakes on the frontier, the boundaries of the States will extend to meet each other in the middle of the water, unless otherwise settled by prescription or express treaty.

(168) It is a general and admitted principle of Muslim law that water will be an appurtenant to adjoining land and not vice versa. That is, a State which possesses a tract of land, bounded by water, will prama facie be presumed to possess also the adjoining water -- a lake, for example and not the State which possesses water is entitled to the proprietary rights of the adjoining land.

Open Sea

(169) Obviously open sea cannot be treated as an ordinary watercourse or lake. Early writers scarcely mention it in this connection. Post-classical jurists have a difference of opinion whether it should be considered as no-one's property or non-Muslim territory. In either case, they argue on the basis of control that would be exercised. Ibn Abodin, while describing the capture of Muslim property by the enemy and rendering it through taking it to their territory, analyses the opinions of different jurists on this subject:

"If they [i.e. the enemy] [unrecognizable character]ake it to the safety of [unrecognizable word] territory. The enemy territory includes the open sea and the like; for instance, a desert beyond which [unrecognizable word] is so [unrecognizable word]. This opinion has been attributed to as-Hos[unrecognizable characters] Abus-Su'ud, writing notes on the commentary of al-Himiltiy's in verse, says that the surface of the city will be considered as non-Muslim territory. Ash-Sharanbilally (born 1069 H., author of (Arabic type) records in his chapter on tithes that Siraj as-Din Umar ibn Ally al-Kinanly, known as the Reader of al-Hidayah, was asked whether the Salt Sea would be considered as part of Muslim territory or non-Muslim territory. He replied: It belongs to neither category says none has control over it. Al-Haskafiy in hands (Arabic type) (compiled in 1080 as a commentary on (Arabic type) by Ibrahim al-Halabiy, opined that the Salt Sea should be included in non-Muslim territory. [The same author mentions in another place:] the author of (Arabic type) says that all that appertains neither to Muslim territory nor to non-Muslim territory should be included in non-Muslim territory; for instance, the Salt Sea over which no one has control . . . Apart from this, the Salt Sea will be treated as non-Muslim territory. So, if a non-Muslim subject of a Muslim State goes thereto without permission, he will become a subject of a non-Muslim State and his allegiance will be cut off. Again, if a subject of a non-Muslim State goes thereto and returns to Islamic territory before reaching home, the old permit will no longer be valid; his belongings will again be taxed (for import customs)."

(170) It is clear from this discussion that the opinion of these jurists was based on the difficulty of exercising power over it with their small sailing boats. They admit implicitly that [the] Muslim jurisdiction extends to what they can control. In later times the Turks for instance, have exercised their jurisdiction over the Black Sea, and no Muslim jurists have denied the validity of it. Nowadays 200 miles of open sea are attributed, at least for fishing purposes, to States; and several aspects of the maritime law are actually in a melting pot, owing to the captivity of industrially advanced countries.

(171) In connection with territorial waters, a saying of the Prophet, in quite general and all-embracing terms, may be referred to. He is reported to have laid down that: "the rule has developed regard  ... to be continued Insha Allah.