Concept and legal classification of enclaves
Definition and distinction
An enclave is a geographically clearly defined territory that is completely surrounded by the territory of another state and politically belongs to another territorial legal entity. The term enclave is etymologically derived from the Latin ‘inclavare’ (to enclose). In the context of international law, an area is referred to as an enclave if a territory of a state (or subnational entity) has no direct territorial connection with its parent territory and is completely surrounded by the territory of another state.
Enclaves must be clearly distinguished from exclaves: while the term enclave applies to the surrounded area from the perspective of the surrounding state, with respect to the country of origin, the area is considered an exclave.
Typical examples
Historically significant examples of enclaves exist both at the international and regional level. For example, the Indian town of Dahagram-Angarpota was a major enclave of Bangladesh within India until a land swap resolved the issue. German municipalities within federal structures can sometimes be viewed as enclaves of one federal state within another, such as Kleinwalsertal in Austria as an exclave of Vorarlberg, which is only accessible through Germany.
Legal aspects of enclaves
International legal aspects
Sovereignty and territorial integrity
The existence of enclaves raises various questions under international law, particularly regarding sovereignty and territorial integrity. Territorial sovereignty generally remains with the state to which the enclave belongs. However, the surrounding state certainly has legitimate interests, such as in the area of security or public order.
Access and transit rights
A key aspect under international law is the right of access. Since enclaves are generally cut off from their parent state, transit through the surrounding state’s territory becomes particularly necessary. International law recognizes the right of transit as a component of territorial sovereignty and the obligations of states to each other. A corresponding provision can be found, for example, in Art. V of the Agreement on Neighboring Exclaves between India and Bangladesh (2015).
In the absence of specific international agreements, the parties often rely on generally recognized principles, such as the principle of good neighborliness and peacekeeping. The specific arrangements are often set out in bilateral treaties, which regulate both rights and obligations regarding supply, entry, transit, and administration.
Domestic and administrative law issues
Tax treatment
Domestic enclaves often give rise to complex tax questions, particularly regarding the taxation of natural and legal persons residing in the enclave. In particular, differing tax principles may exist between the parent country and the surrounding area, which requires coordinated measures. Tax affiliation is generally determined by the law of the state to which the territory politically belongs.
Police, customs, and health law
The enforcement of police and public order matters in enclaves often requires special cooperation mechanisms between the affected states or entities. The same applies to customs and health law, as inspections and flows of traffic regularly cross state boundaries, which are regulated by administrative agreements.
In emergencies or disasters, it is customary for special emergency provisions or immediate measures to be agreed in crisis agreements, enabling the swift enforcement of national law in the enclave.
Examples from Germany and Europe
A well-known example is the Belgian and Dutch enclaves at Baarle-Hertog and Baarle-Nassau, where a complex arrangement of property boundaries has resulted in a large number of enclaves. Regulations for police, fire brigade, and public administration there are precisely set out in bilateral cooperation agreements.
Conflict resolution and territorial changes
Territorial transfers and exchange agreements
Disputes over enclaves can lead to significant political tensions. A common solution is a land swap or the adoption of exchange agreements in which the states involved reshape their territories by mutual consent (such as under an international border treaty). Such arrangements generally require ratification by the respective parliaments and are sometimes mediated by international organizations.
International arbitration
For dispute resolution, international arbitration tribunals or the International Court of Justice (ICJ) may be considered. The basis for the jurisdiction of such institutions is the recognition of the court’s competence by the states involved. However, the resolution of cross-border enclave issues often occurs through diplomatic negotiations.
Enclaves in international treaty law
Bilateral and multilateral arrangements
International treaties on enclaves are concluded at bilateral or multilateral levels and concern, in particular, issues of border demarcation, transit, supply, use of infrastructure, and cooperation in public affairs. In addition to treaties under international law, there are numerous practical administrative agreements covering matters such as supply security or connectivity.
Applicability and implementation
The enforceability of such agreements under international law can be facilitated by incorporating appropriate provisions into national law and by establishing joint authorities. Implementation is regularly monitored by joint commissions that resolve all arising issues through negotiation.
Final remarks
Enclaves represent a particular territorial and administrative challenge in law. They highlight the need for international and inter-territorial cooperation at legal, administrative, and operational levels. The handling of enclaves is characterized by the search for pragmatic solutions that take into account both the interests of the states involved and the needs of the resident population. The legal special features of enclaves address issues of sovereignty, jurisdiction, supply, and the maintenance of public order within a limited area entirely surrounded by foreign territory.
Frequently Asked Questions
What legal particularities arise for enclaves with regard to national legislation?
Enclaves often face the challenge of applying uniform national law, which may not always be fully recognized or enforced by the surrounding country. For residents and institutions within enclaves, the laws of the parent state generally apply, but not those of the surrounding state, even though they are located within its territory. This gives rise to questions regarding the enforceability of laws, legal protection, and law enforcement jurisdiction. Special provisions are often agreed in bilateral treaties, such as for emergencies, criminal prosecution, service of official documents, supply, and access. If members of the enclave violate the laws of the host country, the outcome often depends either on extradition agreements or the extent to which both states coordinate their legal systems.
How is jurisdiction regulated in enclaves?
Jurisdiction in enclaves is a complex issue because, although the territory legally remains under the authority of the parent state, it is physically situated within another state’s jurisdiction. The ordinary courts of the parent state are generally competent. In practice, however, difficulties can arise in carrying out investigations, summoning witnesses, or enforcing judgments if the territory of the surrounding state must be traversed for this purpose. Many enclaves address these issues through special agreements facilitating access by judicial officials and the service of legal documents. Such agreements ensure, for example, access to legal counsel, fair trials, and state protection. In the absence of such agreements, legal protection gaps may arise.
What regulations apply in the event of border crossings into or out of enclaves?
Border crossings between the enclave and the parent or surrounding state are often specially regulated. Depending on the political relationship between the two states, there may be special border posts, exception visas, or designated corridors allowing access to the enclave. Separate agreements typically govern transit, so that goods, services, and passenger traffic can be conducted as smoothly as possible. In times of crisis or conflict, border crossings may be tightly controlled or entirely closed, with significant impacts on the supply and daily life of residents. In some cases, multilateral arrangements exist that set international standards for the handling of enclaves and exclaves.
How are sovereign tasks such as policing and administration ensured in enclaves?
The exercise of sovereign functions by authorities of the parent state is central to the functioning of an enclave. The police and administrative bodies are generally solely responsible for the territory of the enclave, but physical access to these territories may be problematic. In order to enable administrative acts, security tasks, or the enforcement of regulatory measures, bilateral agreements with the surrounding state are required. These may include provisions on free transit, police escort by the host country, and protection for executive personnel. In some exceptional cases, the surrounding state, on the basis of an international treaty, may perform certain administrative tasks on behalf of the parent state, provided this is contractually agreed.
How is the supply of an enclave legally regulated?
Supplying enclaves with food, water, energy, and other essential goods poses a particular legal challenge that is usually regulated through specific agreements. Since transportation typically takes place through the territory of a foreign state, it is subject to international arrangements and customs regulations. Deliveries and services benefiting residents of an enclave are often granted tax or customs privileges to avoid discrimination and supply shortages. Such regulations are often part of comprehensive state treaties ensuring the economic and infrastructural connection of the enclave to the parent state. In the event of political differences or border closures, enclave residents often have the right to take legal action to secure adequate supplies—provided that relevant state treaties make provision.
What tax law peculiarities exist regarding enclaves?
Tax law in enclaves is generally governed by the law of the parent state. However, difficulties frequently arise in terms of determination when persons or companies have tax relationships with both the parent and surrounding states. To avoid double taxation or unclear tax authority, bilateral tax agreements are regularly concluded specifying in which state which taxes may be levied. Particularities arise especially in the areas of value added tax, income tax, and corporate taxation. Compliance with tax obligations is also complicated by the particularities of access and exchange of information between the states involved.
How are notarial or civil registry proceedings (e.g., marriages, birth certificates) handled in enclaves?
Notarial and civil registry acts such as marriages, and the issuance of birth and death certificates, are also conducted in enclaves according to the laws of the parent state. The relevant authorities are usually specially designated or commissioned. Since it is often difficult to carry out these official acts locally, mobile services or special procedures are often used, such as through consulates or mobile registry offices. Recognition of these documents in the surrounding state depends on its legal order and may be regulated through special recognition agreements. In addition, private international law usually contains rules for the mutual recognition of such official documents unless fundamental political obstacles exist.
