lecture 04 territory in international law
TRANSCRIPT
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Territory in
International Law
Law 111 Public International Law
Atty. GILBERT R. HUFANAProfessor
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Territory
the fixed and permanent portion on theearths surface inhabited by the people of
the state and over which it has supremeauthority
consists of the portion of the surface of the
globe on which that State settles and overwhich it has supreme authority
an exercise of sovereignty, covering notonly land, but also the atmosphere as well
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Characteristics
Permanent
Definite/Indicated with Precision
Generally, the territorys limits define theStates jurisdiction
Big enough to sustain the population
Not so extensive as to be difficult to:Administer; and
Defend from external aggression
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Modes of Acquisition of Territory
By Original Title
Discovery and Occupation
Accretion By Derivative Title
Prescription
Cession Conquest/Subjugation
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Modes of Acquisition of Territory
Other Modes
Dereliction/Abandonment
Erosion Revolution
Natural Causes
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Discovery and Occupation
An original mode of acquisition of territorybelonging to no oneterra nullius
land to be acquired must be terra nullius
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Discovery and Occupation
2 Requisites: Doctrine of Effective Occupation
Discovery/Possession
Mere discovery gives only an Inchoate Right ofDiscovery
Once the discovering state begins exercisingsovereign rights over the territory, the inchoate rightripens and is perfected into a full title
Effective Occupation
Does not necessarily require continuous display ofauthority in every part of the territory claimed
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Prescription
acquisition of territory by an averseholding continued through a long term of
years derivative mode of acquisition by which
territory belonging to 1 State is transferred
to the sovereignty of another State byreason of the adverse and uninterruptedpossession thereof by the latter for asufficiently long period of time
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Prescription
2 REQUISITES
continuous and undisturbed possession
lapse of a period of time No rule as to length of time required
Question of fact
Q: What is the source of this right? A:Roman principle of usucapio (long
continued use of real property ripened into
ownership)
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Cession
a derivative mode of acquisition by whichterritory belonging to 1 State is transferred to thesovereignty of another State in accordance with
an agreement between them
a bilateral agreement whereby one Statetransfers sovereignty over a definite portion of
territory to another State E.g. Treaty of cession (maybe an outcome of
peaceful negotiations [voluntary] or the result ofwar[forced])
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Conquest
derivative mode of acquisition whereby theterritory of 1 State is conquered in the courseof war and thereafter annexed to and placedunder the sovereignty of the conquering State
the taking possession of hostile territorythrough military force in time of war and by
which the victorious belligerent compels theenemy to surrender sovereignty of thatterritory thus occupied
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Conquest
acquisition of territory by force of arms
however, conquest alone merely gives an
inchoate right; acquisition must be completedby formal act of annexation
no longer regarded as lawful
UN Charter prohibits resort to threat or use offorce against a States territorial integrity orpolitical independence
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Military Belligerent Occupation
Not equivalent to conquest
Act whereby a military commander in the
course of war gains effective possessionof an enemy territory
By itself, does not effect an acquisition of
territory
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Accretion
the increase in the land area of a Statecaused by the operation of the forces of
nature, or artificially, through human labor Accessio cedat principali (accessory
follows the principal) is the rule which, in
general, governs all the forms of accretion. Examples:
Reclamation projects in Manila Bay
Polders of the Netherlands
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What comprises a territory?
Territorial Domain (Land mass)
Internal Waters
Maritime and Fluvial Domain Aerial Domain
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What comprises a territory?
1. TERRITORIAL DOMAIN
The landmass where the people live
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The Philippine Territory(1987 Constitution)
Article I. National Territory The national territory comprises the Philippine
archipelago, with all the islands and waters
embraced therein, and all other territories over
which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial, fluvial, and
aerial domains, including its territorial sea, the
seabed, the subsoil, the insular shelves, and othersubmarine areas. The waters around, between,
and connecting the islands of the archipelago,
regardless of their breadth and dimensions, form
part of the internal waters of the Philippines.
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The Philippine TerritorialDomain
The Philippine Archipelago is considered as aSingle Territorial Entity
Basis:
1. Treaty of Paris - Between Spain and the U.S.,signed in Paris on December 10, 1898
2. Treaty Between Spain and the U.S. for theCession of Outlying Islands of the Philippines,signed in Washington on November 7, 1900
3. Convention Between the U.S. and Great BritainDelimiting the Philippine Archipelago and the Stateof Borneo, signed in Washington on January 2,
1930
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Treaty of Paris
transferred Philippine sovereignty from Spain tothe U.S. upon payment of twenty million dollars($20,000,000) within three months after treaty
ratification
The boundaries of the Philippine archipelagodefined in Article III of the Treaty of Paris of
1898did not inc lude
two small islands: Sibutuat the extreme southwest of the Sulu grouptoward Borneo and Kagayan de Sulu, lyingnorthwest of Jolo and of some strategic value
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The Cession Treaty of 1900
Spain relinquishes to the U.S. all title and claim
of title, which she may have had at the time of
the conclusion of the Treaty of Paris, to any and
all islands belonging to the PhilippineArchipelago, lying outside the lines described in
Article III of that Treaty and particularly to the
islands of Cagayan, Sulu and Sibutu and theirdependencies, and agrees that all such islands
shall be comprehended in the cession of the
Archipelago as fully as if they had been included
within those lines.
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The Boundaries Treaty of 1930
clarifies those islands in the region belonging toU.S. and those to the State of North Borneo anddelimits the boundary between the Philippine
Archipelago (under U.S. sovereignty) and theState of North Borneo (under British protection)
solely focused on the status of the Turtle Islands
and the Mangsee Islands sovereignty over these islands was transferred
to the U.S.
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The
PhilippineTerritorialDomain
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The Philippine TerritorialDomain
Turtle
Islands
Cagayan
de Sulu
Sibutu
Mangsee
Islands
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Territories claimed by thePhilippines
Spratlys Islands
Sabah (North Borneo)
Scarborough Shoal
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The Spratlys
a disputed group of more than 750 reefs, islets,atolls, cays, and islands in the South China Sea
States staking claims to various islands are:Brunei, China (People's Republic of China),Malaysia, the Philippines, Taiwan (Republic ofChina), and Vietnam
the Spratly area holds significant reserves of oiland natural gas, it is a productive area for worldfishing and commercial shipping, and coastalcountries would get an extended continental
shelf
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Where is Spratlys?
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The Philippine Claim overSpratlys
The Philippines base their claims of sovereigntyover the Spratlys on the issues ofRes nulliusand geography
no effective sovereignty over the islands until the1930s when France and then Japan acquired theislands
When Japan renounced their sovereignty over the
islands according to the San Francisco Treaty, therewas a relinquishment of the right to the islandswithout any special beneficiary. Therefore, argue thePhilippines, the islands became Res nullius and
available for annexation
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The Philippine Claim overSpratlys
In 1956, a private Filipino citizen, Tomas Cloma,unilaterally declared a state on 53 features in theSouth China Sea, calling it "Freedomland
On June 11, 1978, President Ferdinand Marcosof the Philippines issued Presidential decree No.1596, declaring the Spratly Islands (referred to
therein as the Kalayaan Island Group) asPhilippine territory.
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The Philippine Claim overSpratlys
On the basis of geography
Kalayaan is distinct from other island groupsin the South China Sea, because of the sizeof the biggest island in the Kalayaan group
all the islands claimed by the Philippines liewithin its 200-mile Exclusive Economic Zone
according to the 1982 United NationsConvention on the Law of the Sea (UNCLOS)
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Current State of Spratlys
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The Sabah (North Borneo)Dispute
the territorial dispute between Malaysia and thePhilippines over much of the eastern part ofSabah
The Philippines, presenting itself as thesuccessor state of the Sultanate of Sulu, retainsa "dormant claim" on Sabah on the basis that
the territory was only leased to the British NorthBorneo Company in 1878, with the sovereigntyof the Sultanate (and subsequently theRepublic) over the territory never having been
relinquished.
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The Sabah (North Borneo)Dispute
The Sultanate of Sulu was granted the north-eastern part of the territory as a prize for helpingthe Sultan of Brunei against his enemies and
from then on that part of Borneo was recognizedas part of the Sultan of Sulu's sovereignty.
In 1878, the Sultanate leased such territory to
the British North Borneo Company The 1878 cession/rental payment was continued
until the independence and formation of theMalaysian federation in 1963
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The Sabah (North Borneo)Dispute
As of 2004, the Malaysian Embassy to thePhilippines had been paying cession/rentalmoney amounting to US$1,500 per year to the
heirs of the Sultanate of Sulu The Sultan of Sulu relinquished the sovereign
rights over all his possessions in favor of Spain,
based on Bases of Peace and Capitulationsigned by Sultan of Sulu and Spain in Jolo on 22July 1878
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The Sabah (North Borneo)Dispute
In 1885, Spain relinquished all of its claim toBorneo to the United Kingdom of Great Britainand Ireland in the Madrid Protocol of 1885
In spite of that, in 1906 and 1920 the US, whichby then colonized the Philippines, formallyreminded the UK that Sabah belonged not to
them but to the Sultanate of Sulu.
America posited the claim on the premise that Spainnever had acquired sovereignty over North Borneo,and thus did not have the right to transfer claims ofsovereignty over North Borneo to UK in the MadridProtocol of 1885
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The Sabah (North Borneo)Dispute
On 12 September 1962, the territory of NorthBorneo, and the full sovereignty, title anddominion over it were ceded by then reigning
Sultan of Sulu, Muhammad Esmail E. Kiram I, tothe Philippines.
The cession effectively gave the Philippinegovernment the full authority to pursue their claim in
international courts.
To date, Malaysia continues to consistentlyreject Philippine calls to resolve the matter of
Sabah's jurisdiction to the International Court ofJustice.
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The 2013 Standoff
On February 11, 2013, a group of approximately100200 individuals, some of them armed,arrived by boat in Lahad Datu, Sabah from
Simunul island, Tawi-Tawi of southernPhilippines.
They were sent by Jamalul Kiram III, one of the
claimants to the throne of the Sultanate of Sulu. Their objective was to assert their unresolved
territorial claim to North Borneo.
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Scarborough Shoal
Other names: ScarboroughReef, HuangyanIsland, BajodeMasinloc or PanatagShoal
a group of islands, atolls, and reefs than a shoal,
is located in the South China Sea.
The nearest landmass is Palauig town,Zambales province, Luzon Island, at 221
kilometers, about 123 miles west of Subic Bay.
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Scarborough Shoal
The Scarborough Shoal is not includedwithin the territorial lines defined in the
Treaty of Paris (1898),The CessionTreaty(1900), The 1930 Boundary Treaty,1935 Constitution of the Philippines,
Republic Act No. 3046 "Act to Define the
Baselines of the Territorial Sea of thePhilippines"(1961), or the 1987Constitution of the Philippines.
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Scarborough Shoal
ScarboroughShoal
Phili i Cl i h
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Philippine Claim on theScarborough Shoal
the Philippine DFA has asserted that the countryexercised both effective occupation and effective
jurisdiction over Bajo de Masinloc since its
independence erected flags in some islands and a lighthouse which
it reported to the International Maritime Organization
It also asserts that the Philippine and US Naval
Forces have used it as impact range and that itsDENR has conducted scientific, topographic andmarine studies in the shoal, while Filipino fishermenregularly use it as fishing ground and have always
considered it their own
Phili i Cl i th
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Philippine Claim on theScarborough Shoal
The DFA also claims that the name Bajo deMasinlocitself identifies the shoal as a particularpolitical subdivision of the Philippine Province of
Zambales, known as Masinloc. It also asserts that there is no indication that the
international community has acquiesced toChina's historical claim, and that the activity offishing of private Chinese individuals, claimed tobe a traditional exercise among these waters,does not constitute a sovereign act of the
Chinese State.
Phili i Cl i th
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Philippine Claim on theScarborough Shoal
The Philippine government argues that since thelegal basis of its claim is based on theinternational law on acquisition of sovereignty,
the EEZ claim on the waters aroundScarborough is different from the sovereigntyexercised by the Philippines in the shoal.
The Philippine government has proposed takingthe dispute to the ITLOS as provided inUNCLOS, but the Chinese government hasrejected this, insisting on bilateral discussions.
Phili i Cl i th
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Philippine Claim on theScarborough Shoal
Several official Philippine maps published bySpain and United States in 18th and 20thcenturies show Scarborough Shoal as Philippine
territory. The 2012 Scarborough Stand-off between
PROC and RP has led the latter to seriouslyconsider upgrading its maritime patrol and arealreconnaissance capability by acquiring HamiltonClass Cutters from the U.S. and negotiating forpurchase of 12 fighter jets from South Korea for
its small squadron.
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What comprises a territory?
2. INTERNAL WATERS
These are bodies of water within the landboundaries of a State, or are closely linked toits land domain, such that they are consideredas legally equivalent to national land
includes: rivers, lakes and land-locked
seas, canals, and polar regions.
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Rivers
National rivers Lie wholly within 1 States territorial domain from
source to mouth
Belongs exclusively to that State
Boundary Rivers
Separates 2 Different States
Belongs to both States: If river is navigable the boundary line is the
middle of the navigable channel thalweg
If the river is not navigable the boundary line is
the midchannel
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Rivers
Multinational rivers
Runs through several States
Forms part of the territory of the Statesthrough which it passes
EX.: Congo River, Mekong River
International rivers
navigable from the open sea, and whichseparate or pass through several Statesbetween their sources and mouths
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Lakes and Land-locked Seas
If entirely enclosed by territory of 1 state:Part of that States territory
If surrounded by territories of severalStates: Part of the surrounding States
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Canals
Artificially constructed waterways
GR: Belongs to the States territory
XPN: Important Inter-Oceanic Canalsgoverned by Special Regime
Example
(1) Suez Canal(2) Panama Canal
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Historic waters
Waters considered internal only becauseof existence of a historic title, otherwise,should not have that charater
EX.: Bay of Cancale in France
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What comprises a territory?
3. MARITIME AND FLUVIAL DOMAIN
Zones of the Sea
Waters adjacent to the coasts of a State to aspecified limit
1.Territorial Sea
2.Contiguous Zone
3.Exclusive Economic Zone4.Continental Shelf
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Territorial Sea
comprises in the marginal belt adjacent to theland area or the coast and includes generally thebays, gulfs and straights which do not have the
character ofhistoric waters (waters that arelegally part of the internal waters of the State)
portion of the open sea adjacent to the States
shores, over which that State exercisesjurisdictional control
1982 Convention of the Law of the Sea providesthe maximum limit of 12 nautical miles from the
baseline.
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Territorial Sea
Basis necessity of self-defense
Effect territorial supremacy over the territorialsea, exclusive enjoyment of fishing rights and
other coastal rights
BUT: Subject to the RIGHT OF INNOCENTPASSAGE (a foreign State may exercise its right
of innocent passage) Q: When is passage innocent?
A: When it is not prejudicial to the peace, goodorder, or security of the coastal State
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Right of Innocent Passage
The right of continuous and expeditious
navigation of a foreign shop through a
States territorial sea for the purpose of
traversing that sea without entering the
internal waters or calling at a roadstead or
port facility outside the internal waters, or
proceeding to or from internal waters or acall at such roadstead or port facility
Extent and Limitations of Right
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Extent and Limitations of Rightof Innocent Passage
Extends to ALL ships merchant andwarships
Submarines must navigate on the surfaceand show their flag
Nuclear-powered ships, ships carrying
nuclear and dangerous substances mustcarry documents and observe specialsafety measures
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The Baseline Theory/Method
Normal Baseline Method
Territorial sea is drawn from the low-water mark.
Q: What is the low-water mark?
A: The line on the shore reached by the sea atlow tide. Otherwise known as the baseline.
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The Baseline Theory/Method
Straight Baseline Method
A straight line is drawn across the sea, from headlandto headland, or from island to island. That straight line
then becomes the baseline from which the territorialsea is measured.
Q: What happens to the waters inside the line?
A: Considered internal waters. However, the baseline
must not depart to any appreciable extent from thegeneral direction of the coast
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The
PhilippineBaseline(RA 9522)
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Contiguous Zone
zone adjacent to the territorial sea, over whichthe coastal State may exercise such control as is
necessary to: Prevent infringement of its customs, fiscal,
immigration or sanitary laws within its territory orterritorial sea;
Punish such infringement
extends to a maximum of 24 nautical miles fromthe baseline from which the territorial sea ismeasured.
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Exclusive Economic Zone (EEZ)
a maximum zone of 200 nautical miles from thebaseline from which the territorial sea is measured,over which, the coastal State exercises sovereign
rights over all the economic resources of the sea,sea-bed and subsoil
Rights of other States in the
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Rights of other States in theEEZ
Freedom of navigation and overflight
Freedom to lay submarine cables and
pipelines Freedom to engage in other internationally
lawful uses of the sea related to said
functions
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Continental Shelf
comprises the seabed and subsoil of thesubmarine areas that extend beyond theterritorial sea throughout the natural
prolongation of its land territory to the outeredge of the continental margin; or to a distanceof more than 200 nautical miles from thebaselines form which the breadth of the
territorial sea is measured where the outeredge of the continental shelf does not extendup to that distance
Rights of the Coastal State
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Rights of the Coastal State
sovereign rights for the purpose of exploring andexploiting its natural resources
rights are exclusive if the State does not
explore or exploit the continental shelf, no onemay do so without its express consent
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Archipelagic Doctrine
emphasizes the unity of land and waters bydefining an archipelago either as a group ofislands surrounded by waters or a body of waters
studded with islands it requires that baselines be drawn by connecting
the appropriate points of the outermost islands
to encircle the islands within the archipelago
waters on the landward side of the baselinesregardless of breadth or dimensions are merelyinternal waters
Archipelagic
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ArchipelagicDoctrine
an archipelago shall beregarded as a single unit,so that the waters around,between, and connectingthe islands of thearchipelago, irrespective oftheir breadth anddimensions, form part of theinternal waters of the state,subject to its exclusivesovereignty
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Rules Governing the Baselines
Such baselines should not depart radically fromthe general direction of the coast, or from thegeneral configuration of the archipelago
Within the baselines are included the main islandsan area with a maximum water area to land arearatio of 9:1
Length of baselines shall not exceed 1nauticalmiles
XPN: Up to 3% of the total number of baselines mayhave a maximum length of 125 nautical miles
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Effect of the Baselines
The waters inside the baselines areconsidered internal waters;
The territorial sea, etc. are measured fromsuch baselines;
Archipelagic State exercises sovereignrights over all the waters enclosed by thebaselines
Limitation Archipelagic
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Limitation ArchipelagicSealanes
Archipelagic State must designate sea andair route for the continuous andexpeditious passage of foreign ships andaircraft through or over its archipelagicwaters and adjacent territorial sea
Passage only for continuous, expeditious, and
unobstructed transit between 1 part of thehigh seas or an EEX to another part of thehigh seas or an EEZ
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The Philippine Archipelago
The Philippines adheres to theArchipelagic Doctrine Art. I, 1987Constitution:
The waters around, between, and
connecting the islands of the archipelago,regardless of their breadth and
dimensions, form part of the internalwaters of the Philippines.
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Republic Act No. 9522
Amended RA 3046 as amended by RA 5446
Defined the archipelagic baselines of thePhilippines
The Philippine archipelago comprises of 101baselines
Regimes of Islands:
The Kalayaan Island Group as constitutedunder Presidential Decree No. 1596; and
Bajo de Masinloc, also known as ScarboroughShoal
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Republic
Act No.9522
Scarborough
Shoal
Kalayaan
Island Group
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The regime of the High Seas
belongs to everyone and to no one both rescommones and res nullius
everyone may enjoy the following rights over the
high seas: Navigation, Fishing, Scientificresearch, Mining, Laying of submarine cables orpipelines; andother human activities in the opensea and the ocean floor
the freedoms extend to the air space above thehigh seas
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Doctrine of Hot Pursuit
The pursuit of a foreign vessel undertakenby the coastal State which has good
reason to believe that the ship has violatedthe laws and regulations of that State.
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Requisites of DHP
Be commenced when the ship is within thepursuing States:
Internal Waters;
Territorial Sea; or
Contiguous Zone
May be continued outside such waters if the
pursuit has not been interrupted Continuous and unabated
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Requisites of DHP
Ceases as soon as the foreign ship enters theterritorial sea of:
Its own State; or
That of a 3rd State Be undertaken by:
Warships; or
Military aircraft; or Other ships/aircraft cleared and identifiable as
being in the government service andauthorized to that effect
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Aerial Domain
the airspace above the territorial andmaritime domains of the State, to the limitsof the atmosphere
does not include the outer space
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Air Space
the air space above the States terrestrial and
maritime territory
Every State has complete and exclusive
sovereignty over the air space above its territory Convention on International Civil Aviation
Territory includes terrestrial and maritime
territory thus, includes air space above territorial sea
NO right of innocent passage!
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Air Space
the air space above the high seas is open to allaircraft, just as the high seas is accessible toships of all States
the State whose aerial space is violated can takemeasures to protect itself, but it does not mean thatStates have an unlimited right to attack the intrudingaircraft (intruding aircraft can be ordered either to
leave the States air space or to land)
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5 Air Freedoms
a. overflight without landing;
b. landing for non-traffic purposes;
c. put down traffic from state to airline;d. embark traffic destined for state of
aircraft; and
e. embark traffic or put down traffic to orfrom a third state
P i C i f 1919
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Paris Convention of 1919
Each nation has absolute sovereignty over theairspace overlying its territories and waters. Anation, therefore, has the right to deny entry and
regulate flights (both foreign and domestic) intoand through its airspace.
Aircraft of contracting states are to be treatedequally in the eyes of each nation's law.
P i C ti f 1919
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Paris Convention of 1919
Each nation should apply its airspace rulesequally to its own and foreign aircraft operatingwithin that airspace, and make rules such that its
sovereignty and security are respected whileaffording as much freedom of passage aspossible to its own and other signatories' aircraft.
Aircraft must be registered to a state, and theypossess the nationality of the state in which theyare registered.
The 1944 Chicago Convention
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The 1944 Chicago Conventionon International Civil Aviation
It provides that every State has complete andexclusive sovereignty over the airspace aboveits territory.
It states the principle that aircraft have thenationality of the State in which they areregistered (notably, many rules governingaircraft, provided in the Convention, have beencopied from the rules governing ships).
The 1944 Chicago Convention
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The 1944 Chicago Conventionon International Civil Aviation
It makes a distinction between scheduled andunscheduled air services. No scheduledinternational air service of one State may be
operated over or into the territory of anotherState, except with the special permission orother authorization of that State, and inaccordance with the terms of such permission or
authorization.
The 1944 Chicago Convention
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The 1944 Chicago Conventionon International Civil Aviation
Aircraft not engaged in scheduled internationalair services have the right to make flights into orin transit non-stop across the territory of another
State, and to make stops for non-traffic purposeswithout the necessity of obtaining priorpermission of that State, subject, however, to theright of the State flown over to require landing, or
to impose certain restrictions, such as routesand off-limit areas.
The 1944 Chicago Convention
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The 1944 Chicago Conventionon International Civil Aviation
The Chicago Conventions applies only to civilaircraft, not to State aircraft which are used inmilitary, customs and police services.
State aircraft have no right to fly over theterritory of another State or land thereon withoutauthorization by special agreement or otherwise,and in accordance with the terms thereof.
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Outer Space (Res Communes)
the space beyond the airspace surrounding theearth or beyond the national airspace, which iscompletely beyond the sovereignty of any State
the moon and the other celestial bodies formpart of the outer space (Moon Treaty of 1979)
thus, it is not subject to national appropriation
free for all exploration and use by all States andcannot be annexed by any State
governed by a regime similar to that of the highseas
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Outer Space Treaty
Outer Space is free for exploration and use byStates; cannot be annexed by any State
Its use and exploration must be carried out for
the benefit of all countries and in accordancewith international law
Celestial bodies shall be used exclusively forpeaceful purposes
Nuclear weapons and weapons of massdestruction shall not be placed in orbit aroundthe earth
The Boundary between the Air
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yspace and the Outer space
No accepted answer yet! There are differentopinions:
That it should be near the lowest altitude
(perigee) at which artificial earth satellites canremain in orbit without being destroyed by frictionwith the air around 190 km from earths surface
Theoretical limit of air flights is 90 km above the
earth Functional Approach: The legal regime governing
space activities are based, not on a boundaryline, but on the nature of the activities
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END OF LECTURE
Territory in International Law