CHAPTER 7 TERRITORY: LAND, AIR, OUTER SPACE Territory in International Lawan area over which a state has effective

control Exact boundaries might be uncertain but there should be a definitive core over which sovereignty is exercised Acquisition of territoryacquisition of sovereignty over territory Includes land, maritime areas, airspace and outer space Modes of Acquisition of Sovereignty over Territory 1. Discovery and Occupation Occupationacquisition of terra nulliusterritory which prior to occupation belonged to no state or which may have been abandoned by a prior occupant There is abandonment when occupant leave the territory with the intention of not returning Discovery of terra nullius is not enough to establish sovereignty; it must be accompanied by effective control WESTERN SAHARA CASE HELD: Territories inhabited by tribes or peoples having a social and political organization were not regarded as terra nullius. The information furnished to the Court shows that at the time of colonization, Western Sahara was inhabited by peoples which, if nomadic, were socially and politically organized into tribes and under chiefs competent to represent them. THE ISLAND OF PALMAS FACTS: Palmas (Miangas) is an island of little economic value or strategic location. The island is located between Mindanao, Philippines and the northern most island, known as Nanusa, of what was the former Netherlands East Indies. In 1898, Spain ceded the Philippines to the United States in the Treaty of Paris (1898) and Palmas sat within the boundaries of that cession to the U.S. In 1906, US discovered that the Netherlands also claimed sovereignty over the island, and the two parties agreed to submit to binding arbitration by the Permanent Court of Arbitration. ISSUE: w/n the Island of Palmas (Miangas), in its entirety, was a part of the territory of the United States or the Netherlands HELD: The Arbitrator, Swiss lawyer Max Huber, ruled in favor of the Netherlands position and stated that the Netherlands held actual title to Palmas. For these reasons, the Arbitrator decides that the Island of Palmas forms, in its entirety, a part of the Netherlands territory. Right by discoveryUS argued that it held the island because it had received actual title through legitimate treaties from the original "discoverer" of the island, Spain. US argued that Spain acquired title to Palmas when Spain discovered the island and the island was terra nullius. Spain's title to the island, because it was a part of the Philippines, was then ceded to US in the Treaty of Paris after Spain's defeat in the Spanish-American War. The arbitrator noted that no new international law invalidated the legal transfer of territory via cession. However, the arbitrator noted that Spain could not legally grant what it did not hold and the Treaty of Paris could not grant to US Palmas if Spain had no actual title to it. The arbitrator concluded that Spain held an inchoate title when Spain discovered Palmas. However, for a sovereign to maintain its initial title via discovery, the arbitrator said that the discoverer had to actually exercise authority, even if it were as simple an act as planting a flag on the beach. In this case, Spain did not exercise authority over the island after making an initial claim after discovery and so the United States claim was based on relatively weak grounds. ContiguityUS also argued that Palmas was US territory because the island was closer to the Philippines than to Indonesia which was then held by the Netherlands East Indies. The arbitrator said there was no positive international law which favored the US approach of terra firma, where the nearest continent or island of considerable size gives title to the land in dispute. The arbitrator held that mere proximity was not an adequate claim to land noted that if the international community followed the proposed United States approach, it would lead to arbitrary results. Continuous and peaceful display of sovereigntythe Netherlands' primary contention was that it held actual title because the Netherlands had exercised authority on the island since 1677. The arbitrator noted that the US had failed to show documentation proving Spanish sovereignty on the island except those documents that specifically mentioned the island's discovery. Additionally, there was no evidence that Palmas was a part of the judicial or administrative organization of the Spanish government of the Philippines. However, the Netherlands showed that the Dutch East India Company had negotiated treaties with the local princes of the island since the 17th century

and had exercised sovereignty, including a requirement of Protestantism and the denial of other nationals on the island. The arbitrator pointed out that if Spain had actually exercised authority, than there would have been conflicts between the two countries but none are provided in the evidence. In resolving island territorial disputes, the following 3 important rules must be followed: 1. Title based on contiguity has no standing in international law 2. Title by discovery is only an inchoate title 3. If another sovereign begins to exercise continuous and actual sovereignty and the discoverer does not contest this claim, the claim by the sovereign that exercises authority is greater than a title based on mere discovery EASTERN GREENLAND CASE HELD: A claim to sovereignty based not upon some particular act or title such as treaty or cession but merely upon continued display of authority, involves 2 elements each of which must be shown to exist: (a) intention and will to act as sovereign, and (b) some actual exercise or display of such authority. Another circumstance which must be taken into account is the extent to which the sovereignty is also claimed by some other Power. One of the peculiar features of the present case is that up to 1931, there was no claim by any Power other than Denmark to the sovereignty of Greenland. 2. Prescriptionrequires effective control and the object is not terra nullius The required length of effective control is longer than in occupation May be negated by a demonstrated lack of acquiescence by the prior occupant 3. Cessionacquisition of territory through treaty A treaty of cession which is imposed by a conqueror is invalid 4. Conquest and Subjugation Conquesttaking possession of a territory through armed force It is necessary that the war had ended either by treaty or by indication that all resistance had been abandoned Now, conquest is proscribed by international law No territorial acquisition resulting from the use or threat of force shall be recognized as legal 5. Accretion and Avulsionsovereignty by operation of nature o Accretiongradual increase of territory by the action of nature o Avulsionsudden change resulting for instance from the action of a volcano Is Contiguity a Mode of Acquisition? It is impossible to show a rule of positive international law to the effect that islands situated outside the territorial waters should belong to a state from the fact that its territory forms part of the terra firma (Las Palmas Case) Intertemporal Law Rules in effect at the time of the acquisition should be applied AIRSPACE Each state has exclusive jurisdiction over the air space above its territory Sovereignty over airspace extends only until where outer space begins Consent for transit must be obtained from the subjacent nation State Aircraftaircraft used in military, customs and police services No state aircraft of a contracting State shall fly over the territory of another State or land thereon without authorization by special agreement or otherwise, and in accordance with the terms thereof. (Art. 3[a] of Chicago Convention on International Civil Aviation) Aircraft must not only not be attacked unless there is reason to suspect that the aircraft is a real threat but also that a warning to land or change course must be given before it is attacked (Lissitzyn) Civilian aircraft should never be attacked OUTERSPACE Outer space, wherever that might be, and celestial bodies, are not susceptible to appropriation by any state The Moon and other celestial bodies shall be used by all State Parties to the Treaty exclusively for peaceful purposes. (1967 Treaty on the Exploration and Use of Outer Space)

CHAPTER 8 TERRITORY: LAW OF THE SEA Importance of the Sea 1. Medium of communication 2. Contain vast natural resources Grotius elaborated the doctrine of the open seas which considers the high seas as res communis accessible to all o The doctrine recognized as permissible the delineation of a maritime belt by littoral states as an indivisible part of its domain o Maritime belt = territorial sea Convention on the Law of the Sea of 1982 prevailing law on maritime domain Art. 2 of the 1982 Law of the Sea provides that 1. Sovereignty of a coastal State extends, beyond its land territory and internal waters and, in case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as territorial sea 2. Sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil 3. Sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law Territorial Sea belt of sea outwards from the baseline and up to 12 nautical miles beyond The width of this territorial belt of water is the 12-mile rule However, where the application of the 12-mile rule to neighboring littoral states would result in overlapping the rule is that the dividing line is the median line equidistant from the opposite baselines Equidistance rule does not apply where historic title or other special circumstances require a different measurement Baselines the low-water line along the coast as marked on large scale charts officially recognized by the coastal State Two ways of drawing the Baseline: 1. Normal baseline one drawn following the low-water line along the coast as marked on large scale charts officially recognized by the coastal State this line follows the curvatures of the coast and therefore would normally not consist of straight lines 2. Straight baseline drawn connecting selected points on the coast without appreciable departure from the general shape of the coast Most archipelagic states use straight baselines Art. 47 of the Convention on the Law of the Sea the length of such baseline shall not exceed 100 nautical miles, except that up to 3% of the total number of baselines enclosing any archipelago may exceed that length up to a maximum length of 125 nautical miles Sovereignty over Territorial Sea same as sovereignty over its land territory The sea and the strait are subject to the right of innocent passage by other states Right of Innocent Passage passage that is not prejudicial to the peace, good order or security of the coastal state Applies to ships, aircrafts, and submarines Coastal states have the unilateral right to verify the innocent character of passage, and it may take the necessary steps to prevent passage that it determines to be not innocent Internal Waters all waters landwards from the baseline of the territory Coastal states may regulate access to its ports (Nicaragua case) Archipelagic Waters An archipelagic state may designate sea lanes and air routes thereabove, suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea The concept of the archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines, and removes straits connecting these waters with the economic zone or high sea from the rights of foreign vessels to transit passage for international navigation

Bays well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain land-locked waters and constitute more than a mere curvature of the coast Considered as internal waters of a coastal state Indentation shall not be regarded as bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation Historic Bays treated by the costal state as internal waters on the basis of historic rights acknowledge by other states Contiguous Zone an area of water not exceeding 24 nautical miles from the baseline It extends 12 nautical miles from the edge of the territorial sea Coastal state exercises authority over that area to the extent necessary to prevent infringement of its customs, fiscal, immigration or sanitation authority over its territorial waters or territory and to punish such infringement However, the power of control given to the littoral state does not change the nature of the waters Beyond the territorial sea, the waters are high sea and are not subject to the sovereignty of the coastal state Exclusive Economic Zone or Patrimonial Sea an area extending not more than 200 nautical miles beyond the baseline Coastal state has rights over the economic sources of the sea, seabed and subsoil but the right does not affect the right of navigation and overflight of other states The delimitation of the overlapping EEZ between adjacent states is determined by agreement Two Primary Obligations of Coastal States: 1. They must ensure through proper conservation and management measures that the living sources of the EEZ are not subjected to over exploitation 2. They must promote the objective of optimum utilization of the living sources The Continental (Archipelagic) Shelf refers to the a. Seabed and subsoil of the submarine areas adjacent to the coastal state but outside the territorial sea, to a depth of 200 meters or, beyond that limit, to where the depth allows exploitation b. Seabed and subsoil of areas adjacent to islands The Deep Seabed: Common Heritage of Mankind These are areas of the seabed and ocean floor, and their subsoil, which lie beyond any national jurisdiction These are the common heritage of mankind and may not be appropriated by any state or person Islands naturally formed area of land, surrounded by water, which is above water at high tide Artificial islands or installations are not islands Important due to the possibility of exploiting oil and gas resources around them Islands can have their own territorial sea, exclusive economic zone and continental shelf Rocks which cannot sustain human habitation or economic life shall have no exclusive economic zone or continental shelf, but can have a territorial sea The High Seas all parts of the sea that are not included in the territorial sea or in the internal waters of a state The flag state has exclusive jurisdiction over its ships on the high seas to the extent not limited by agreement Six Freedoms which High Seas are subject to: a. Navigation b. Overflight belongs to both civilian and military aircraft c. Fishing includes the duty to cooperate in taking measures to ensure the conservation and management of the living resources of the high seas d. Lay submarine cables and pipelines e. Construct artificial islands and structures f. Scientific research Hot Pursuit Art. 111 allows hot pursuit of a foreign vessel where there is good reason to believe that the ship has violated laws or regulations of a coastal state This must commence when the foreign vessel is within the internal waters, archipelagic waters, territorial waters, exclusive economic zone, continental shelf or the contiguous zone of the pursuing state Hot pursuit must stop as soon as the ship pursued enters the territorial waters of its own state or of a third state May be carried out only by warships or military aircraft, or any other ships or aircraft properly marked for that purpose