chapter 7 - territory

35
PUBLIC PUBLIC INTERNATIONAL LAW INTERNATIONAL LAW Chapter 7: TERRITORY: LAND, AIR, OUTER SPACE

Upload: dindogabia

Post on 03-Oct-2015

15 views

Category:

Documents


4 download

DESCRIPTION

Bernas

TRANSCRIPT

  • PUBLIC INTERNATIONAL LAWChapter 7:TERRITORY: LAND, AIR, OUTER SPACE

  • Territory in International LawElement of a state which means an area over which a state has effective control

    Las Palmas case: Control over territory is of the essence of a state.

  • Territory includes

    LandMaritime areasAirspaceOuter space

  • Las Palmas Case: US v. Netherlands- Palmas (Miangas) is an island of little economic value or strategic location.- Palmas lies betweenMindanao, the southernmost part of thePhilippines, and the Nanusa Islands, the northernmost part of Indonesia other than Palmas. - The United States (P) claimed that the Island of Palmas was part of the Philippines but the Netherlands claimed it also.- US claimed the Island of Palmas was part of the Philippines and had been ceded by Spain by the Treaty of Paris in 1898.- The United States, as successor to the rights of Spain over the Philippines, based its claim of title in the first place on discovery. - Also, it was American territory because the island was closer to the Philippines than to the Netherlands

  • Las Palmas :The Netherlands (D) claimed that it had possessed and exercised rights of sovereignty over the island from 1677 or earlier to the present. Netherlands showed that theDutch East India Companyhad negotiated treaties with the local princes of the island since the 17th century and had exercised sovereignty,

    Issue:whether a territory belongs to the first discoverer, even if they do not exercise authority over the territory, or whether it belongs to the state which actually exercises sovereignty over it.?

  • Ruling:Netherlands.three important rules for resolving island territorial disputes were decided:Firstly, title based on contiguity has no standing in international law.Secondly, title by discovery is only an inchoate title.Finally, if another sovereign begins to exercise continuous and actual sovereignty, (and the arbitrator required that the claim had to be open and public and with good title), 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.

  • Modes of Acquisition of Sovereignty over TerritoryIn general, a State may acquire the territory which is:Under the sovereignty of another State State gets a derivative title over the territoryDoes not belong to any State (terra nullius) Original mode where there is no transfer of ownership

  • Modes of Acquisition of Sovereignty over Territory

    Discovery and OccupationPrescriptionCessionConquest and SubjugationAccretion

  • Discovery and Occupation Discoveryis the oldest method of acquiring title to territory. Discovery alone would not suffice to establish legal title. It is necessary that the discovered area must be physically occupied.

    Related to title by discovery is thehinterland doctrineor the principle of continuity. Occupation acquisition of terra nulliusTerra nullius territory which prior to occupation belonged to no state or which may have been abandoned by a prior occupantOccupationis the intentional acquisition by a state over a territory which at the time of claim not under the sovereignty of any state.

  • Discovery and OccupationThere are two requirements: the territory subject of claim must not be under the sovereignty of any state (terra nullius); and

    (2) the state must have effectively occupied the territory, that is, the state claiming the territory must have exercised immediate occupation (corpus occupandi) on the territory after it displayed its intention to occupy (animus occupandi).

    .

  • Elements of Effective Occupation

    the intention and will to act as sovereign (animus), andthe peaceful and continuous display of stateauthority (factum)

  • Western Sahara caseFacts:Western Sahara had been colonized by the Spanish for many years. Morocco claimed the North Half and Mauritania the South Half.Morocco eventually claimed the whole area claiming that it is terra nullius?

    Issue:

    whether or not Sahara is terra nullius?

  • Ruling:No.

    The information furnished to the Court shows(a)that at the time of colonization Western Sahara was inhabited by peoples which, if nomadic, were socially and politically organized in tribes and under chiefs competent to represent them;(b)that Spain did not proceed upon the basis that it was establishing its sovereignty overterrae nullius: in Order of 26 December 1884 the King of Spain proclaimed that he was taking the Rio de Oro under his protection on the basis of agreements entered into with the chiefs of local tribes.

  • Clipperton island Arbitration: Mexico v. FranceFacts: the sovereignty over the Clipperton was disputed. The French crew landed at the uninhabited place Pacific Ocean island of Clipperton and soon was followed by a declaration of sovereignty in a Honolulu journal. Held: This was considered to be sufficient to support the French claim over the island against Mexico which claimed sovereignty as the successor State to Spain whose army stated to have discovered the Island. The actual and not the nominal taking of possession is a necessary condition of occupation.

  • 2. Prescription

    means continued occupation over a long period of time by one state of territory actually and originally belonging to another state.

  • Requirements of Prescription(1) the possession must be exercised in the form of actual exercise of sovereign authority; (2) the possession must be peaceful and uninterrupted;(3) the possession must be public; and (4) the possession must be for a long period of time.

  • 3. Cession the transfer of territory usually by treaty from one state to another.

    Concomitant of transfer of territory is the transfer of sovereigntyfrom the owner state to another state.

    since cession is a bilateral transaction, the parties involvedare states.

    Cession may also be in the form of exchange of territory or in the form gift or donation or devise.

  • 3. CessionVoluntary cession gift, exchange or sale following peaceful negotiationsExamples:a. sale of Danish West Indies by Denmark to the USb. sale by Russia of Alaska to US,c. Marriage gift of Bombay by Portuguese King to British Prince at his sisters marriage

  • Examples of CessionUS acquired the Phils. Through the Treaty of Paris

    2. transfer of sovereignty over Hong Kongfrom theUnited KingdomtoChina, referred to as "the Handover" internationally or "the Return" in China

  • 3. ConquestConquestis acquiring territory by the use of force. The practice before was after conquest, the conquerorannexed the conquered territory to his state.conquest first takes place followedbyannexation.

  • ConquestToday is proscribed by international law,

    1970 Declaration of Principles of International Law Concerning friendly Relations and Cooperation among States

  • 4. Accretion and Avulsion

    Accretionis the attainment of sovereignty over new land due to slow movement of natural forces. Example of this is the gradual movement ofa river bed.

    On the other hand, if the natural forces happened suddenly, like creation of an island in territorial waters due to volcanic eruption, it is referred asavulsion.

  • Is contiguity a mode of acquisition?In Las palmas case: No. It is conflict with territorial sovereignty.

    In North Sea Continental Shelf case: the court preferred the theory of continuity than contiguity

  • Which law is applicable?

    The generally accepted view is that the rules in effect at the time of the acquisition should be applied.

  • AirspaceBefore the First World War, it was held that airspace is completely free but the outbreak of the 1st world war brought about the realization that the use of the air had security implications.

    Air above is an extension of the territory below.

  • Chicago Convention on International Civil AviationIncorporated the general principles of International air law, including the privileges.

    It laid down the norms of technical, legal and navigational matters to be followed by State parties.

  • Salient FeaturesArt. 1 The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory.

    Art. 5 It provided the transit rights to the State parties for non-scheduled international air services without the necessity of obtaining prior permission, but subject to the observance of the other terms of the Convention and the right of the subjacent State to require landing.

  • Art. 6 For scheduled international air services, the Convention clearly stipulates that they may be operated over and into the territory of a contracting State only with its special permission or authorization .

    The Convention Is applicable to civil aircrafts. State aircrafts, including military aircrafts have no right of transit without special authorization.

  • Outer SpaceSovereignty over air space extends only until where outer space begins.

    There is as yet no definite answer where outer space begins.

  • 1967 Treaty on the Exploration and Use of Outer SpaceArt. 1Exploration and use shall be carried out for the benefit of all countries (w/o discrimination)Outer space, including the moon and other celestial bodies shall be free for explorationThere shall be freedom of scientific investigation and States shall facilitate international cooperation in such investigation

    Art. 2Outer space is not subject to national appropriation

  • 1967 Treaty on the Exploration and Use of Outer SpaceArt. 3- States Parties to the Treaty shall carry on activities in the exploration and use of outer space in accordance with International Law in the interest of maintaining international peace and security

  • 1967 Treaty on the Exploration and Use of Outer SpaceArt. 4Parties undertake not to place in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destructionThe moon and other celestial bodies shall be used exclusively for peaceful purposesThe use of military personnel for scientific research for any other peaceful purposes shall not be prohibited

  • 1967 Treaty on the Exploration and Use of Outer Space

    Art. 5- States Parties to the Treaty shall regard astronauts as envoys of mankind and render possible assistance in the event of accident, distress or emergency landing on the territory of another State Party or on the high seas

  • THANK YOU!

  • The territory of State is an important attribute of Statehood for reasons such as:Conveys States factual existence and basis for exercise of its legal powersSignifies the States title and sets the limits of its territorial sovereignty

    *- State exercises jurisdiction over persons and property to the exclusion of others within this territorial domain

    *The scope of states jurisdiction over maritime areas will be discussed in another chapter. In this chapter, only land area, air space and outer space will be considered.***

    From the given definition, we can deduced two basic elements of custom*Terra nullius(/trnla.s/, pluralterrae nullius) is aLatinexpression deriving fromRoman lawmeaning "land belonging to no one",[1]which is used ininternational lawto describe territory which has never been subject to thesovereigntyof any state, or over which any prior sovereign has expressly or implicitly relinquished sovereignty.Consistency means continuity and repetition

    And with regard to generality of the practice of States, it need not be complete, but it must be substantial. Absolute conformity is therefore not required. **hinterland \hin"ter*land`\, n. [G.; hinter behind + land land.] a remote and undeveloped area; originally, the land or region lying behind the coast district. The term is used esp. with reference to the so-called doctrine of the hinterland, sometimes advanced, that occupation of the coast supports a claim to an exclusive right to occupy, from time to time, the territory lying inland of the coast.**The intention can be displayed from the simple fact of publishing notices of sovereignty in various state journals orissuing laws on territorial assertions. The display of state authority must be peaceful and continuous. Mere protests from rival claimant states do not lose the peaceful character of the display of state authority. However,consistent protests over a long period of time if not rebutted by the claimant state may disturb the peaceful character of the display of state authority. The continuous display of state authority encompasses two ideas: (1) that the display of authority is ongoing;and(2) the display of state authority must exist up to the "critical date". The critical date in a territorial dispute is the date on which the location of territorial sovereignty is decisive. Normally it is the date of the origin of the dispute. The state which can present an effective title in the period immediately preceding thecritical date has the superior claim.The intention can be displayed from the simple fact of publishing notices of sovereignty in various state journals orissuing laws on territorial assertions. The display of state authority must be peaceful and continuous. Mere protests from rival claimant states do not lose the peaceful character of the display of state authority. However,consistent protests over a long period of time if not rebutted by the claimant state may disturb the peaceful character of the display of state authority. The continuous display of state authority encompasses two ideas: (1) that the display of authority is ongoing;and(2) the display of state authority must exist up to the "critical date". The critical date in a territorial dispute is the date on which the location of territorial sovereignty is decisive. Normally it is the date of the origin of the dispute. The state which can present an effective title in the period immediately preceding thecritical date has the superior claim.

    The intention can be displayed from the simple fact of publishing notices of sovereignty in various state journals orissuing laws on territorial assertions. The display of state authority must be peaceful and continuous. Mere protests from rival claimant states do not lose the peaceful character of the display of state authority. However,consistent protests over a long period of time if not rebutted by the claimant state may disturb the peaceful character of the display of state authority. The continuous display of state authority encompasses two ideas: (1) that the display of authority is ongoing;and(2) the display of state authority must exist up to the "critical date". The critical date in a territorial dispute is the date on which the location of territorial sovereignty is decisive. Normally it is the date of the origin of the dispute. The state which can present an effective title in the period immediately preceding thecritical date has the superior claim.

    ***For prescription to apply, the state with title to the territory must acquiesce to the action of the other state. This has been construed as a state not protesting the action of another state. So, if a state takes over the territory of another state and treats it as its own territory, the other state has an obligation to protest. If it does not, the silence may be considered acquiescence to the prescription. Over time, sovereignty to the territory is considered transferred. There is no specific time frame when the change of sovereignty is recognised; but at some point, the transfer of sovereignty is accepted.* The peaceful and continuous displayis alsoan essential element althoughas compared to occupation, prescription requires a stricter proof and longer period of the display of authority. Moreover, any protest or objection by the losing state destroys the peaceful display of authority of the claiming state. *The ceded territory takes effect under the rule of nemo dat quod non habet (no one can give another a better title than he himself has. It is subject to any limitation of sovereignty to which the ceding State was bound***But with the establishment of the United Nations, conquest is no longer acceptable in the international community. But with the establishment of the United Nations, conquest is no longer acceptable in the international community.

    *These mode of acquisition is of minor importance, and does not require a detailed discussion.*Exclusiverightof a state toexerciseitspowerswithin the boundaries of itsterritory. *The term under statute of ICJ is wide and vague.

    It includes though not confined to principles of justice which have been accepted and adopted by civilized nations generally.

    The Court can have recourse to this source if there is No clear rule of customary law in a case before it.

    This is necessary to avoid the possibility that a court would be unable to decide a case because of gap in the law.

    An intl judicial body is under a duty to adjudicate and should not tefrain from giving judgment on the ground that the law is silent or obscure.

    *Each state has exclusive jurisdiction over the air space above its territory. Therefore, consent for transit must be obtained from the subjacent nation.**Flight over territory is classified into :Non svheduledScheduled

    *Scheduled intl air services series of flights with ffg char:Must pass thru the air space of more than 1 statePerformed by an aircraft in the transport of passengers, mail or cargo for remunerationOperated in order to serve traffic between 2 or more points **Outer space*****