TERRITORIAL RIGHTS

• The Conception and Significance of State Territory

• The Component Parts of State Territory

land territory

territorial waters

inferior land

airspace

• Basic concepts

TERRITORIAL RIGHTS

Ⅰ. The Conception and Significance of State Territory

ⅰ. The Conception of State Territory

State territory is that defined portion of the globe which is subjected to the sovereignty of a state.

A state without a territory is not possible, although the necessary territory may be very small, as with the Principality of Monaco. A wandering tribe, although it has a government and is otherwise organized, is not a state until it has settled down in a territory of its own.

TERRITORIAL RIGHTS

ⅱ. The Significance of State Territory Territory is a basic requirement of statehood and, within

its territory, a State enjoys and exercises sovereignty. Territorial sovereignty extends over the designated land mass, sub-soil, inland waters, territorial sea and the airspace above the land, internal waters and territorial sea. Although, historically, States were considered to have absolute and exclusive sovereignty over their territory, more recently, there has developed a body of rules, particularly in the fields of human rights and environmental protection, which have placed limits on such sovereignty.

TERRITORIAL RIGHTS

Ⅱ. The Component Parts of State Territoryⅰ. land territory

ⅱ. territorial waters

Internal waters ： national or internal waters consist of lakes, canals( 运河 ), rivers and their mouths, ports, harbors, sometimes waters landward of fringing islands, and some of its gulfs and bays. These different kinds of national water must be distinguished from territorial sea. Internal waters are legally equivalent to a state’s land, and are entirely subject to its territorial sovereignty.

TERRITORIAL RIGHTS Ⅱ. The Component Parts of State Territoryⅰ. land territory

ⅱ. territorial waters

· rivers

Theory and practice agree upon the rule that rivers are part of the territory of the riparian state.

(1) internal river

If a river lies wholly, that is, from its source to its mouth, within the boundaries of one and the same state, such state owns it exclusively, the waters of the river and of its mouth being national or internal waters. Such rivers may be called national rivers.

TERRITORIAL RIGHTS

(2)boundary river

There are boundary rivers, that is, rivers which separate different states from each other. Boundary rivers belong to the territory of the states they separate, the boundary line usually running either through the middle of the river or through the middle of the mid-channel of the river.

If such a river is not navigable, the boundary line as a rule follows the mid-line of the river. If navigable, the boundary line as a rule follows the middle of the mid-channel line of the so-called thalweg （主航道中心线） .

TERRITORIAL RIGHTS

(3)multinational river, pluri-national river( 多国河流 )

There are rivers which run successively through two or more states and may therefore be described as multinational river or pluri-national river, such rivers belong successively to the territories of the states drained （排水） by them.

TERRITORIAL RIGHTS

(4)international river

There are some pluri-national rivers which are navigable( 适于航行的 ) from the open sea and which, though belonging to the territories of the different states concerned, are nevertheless named international rivers, because freedom of navigation on them in time of peace is recognized by treaty.

TERRITORIAL RIGHTS International Rivers is a concept in international law, specifically

referring to flow through several countries to the high seas, ships of all countries to open up the river. States on the river that flows through the country's sovereignty and to maintain the sections of the right to domestic shipping. International rivers flowing through by the national committee set up to jointly coordinate the management of the Merchant Shipping to all countries and opening up. Multinational river runs through the middle of two or more rivers in the state's territory. Multi-national rivers flowing through the respective sections of the countries belonging to the territory of States, countries were located in a section of its sovereignty over the territory. But the multinational generally involve the use of rivers running through the interests of all countries, therefore, on the multi-national river navigation, use, the rationale for such matters as arms, the general should be settled by agreement by the countries concerned. Each of the rivers in the coastal States to exercise their rights, should take into account the interests of other coastal States. States may not be harmful to use the rivers, not to the river diversion or blockage of the river. International practice, the multi-national rivers generally open to all coastal States, instead of the coastal State shall not sail a ship without permission.

TERRITORIAL RIGHTS Ⅱ. The Component Parts of State Territoryⅰ. land territoryⅱ. territorial waters · rivers · canal When canals are confined within the territory of a single

state they are integral parts of the territory. Where, however, a canal is so constructed as to affect an international waterway system, or an international drainage area, it may be subject to the rules of international law. The great interoceanic canals, such as the Suez and Panama Canals, have been subjected to particular international treaty regimes.

· lakes and land-locked seas

TERRITORIAL RIGHTS ⅲ. inferior land

ⅳ. airspace Ⅲ. Basic concepts · Terran nullius 无主地：在国际法上是指从未被占有或者

曾被一个国家占有又被抛弃的土地。 · Res communis 公共地：是指不属于任何一个国家的，

为全人类共同拥有的土地，如南极洲。 · Intertemporal law 时际法：权利产生时应适用当时有效

的法律。 Ⅳ. Case Study

Case Study

• This case is one of the most highly influential precedents dealing with island territorial conflicts.

• Island of Palmas Case, (Scott, Hague Court Reports 2d 83 (1932), (Perm. Ct. Arb. 1928), 2 U.N. Rep. Intl. Arb. Awards 829), was a case involving a territorial dispute over the Island of Palmas (or Miangas) between the Netherlands and the United States which was heard by the Permanent Court of Arbitration. The Island of Palmas (known as Pulau Miangas in Bahasa Indonesian) is now within Indonesian sovereignty.

Case Study

• The structure of the case

Ⅰ. Facts of the case

Ⅱ. The Arbitrator's decision

ⅰ. Right by discovery

ⅱ. Contiguity

ⅲ. Continuous and peaceful display of sovereignty

ⅳ. Conclusion

Case Study

Ⅰ. Facts of the case Palmas, also referred to as Miangas, is an island of little

economic value or strategic location. It is two miles in length, three-quarters of a mile in width, and had a population of about 750 when the decision of the arbitrator was handed down. 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, the United States 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.

Case Study

Ⅰ. Facts of the case On January 23, 1925, the two government signed an agr

eement to that effect. Ratifications were exchanged in Washington on April 1, 1925. The agreement was registered in League of Nations Treaty Series on May 19, 1925.[1] The arbitrator in the case was Max Huber, a Swiss national.

The question the arbitrator was to resolve was whether the Island of Palmas (Miangas), in its entirety, was a part of the territory of the United States or the Netherlands.

The legal issue presented was 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.

Case Study

Ⅱ. The Arbitrator's decision

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 in conformity with Article I of the Special Agreement of January 23rd, 1925 DECIDES that : THE ISLAND OF PALMAS (or MIANGAS) forms in its entirety a part of the Netherlands territory. done at The Hague, this fourth day of April 1928. Max Huber, Arbitrator Michiels van Verduynen, Secretary-General.

Case Study

ⅰ. Right by discovery In the first of its two arguments, the United States argued

that it held the island because it had received actual title through legitimate treaties from the original "discoverer" of the island, Spain. The United States 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 the United States in the Treaty of Paris (1898) 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.

Case Study

ⅰ. Right by discovery However, the arbitrator noted that Spain could not legally

grant what it did not hold and the Treaty of Paris could not grant to the United States 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.

Case Study

ⅱ. Contiguity 毗邻关系 The United States also argued that Palmas was United S

tates 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 United State's 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.

Case Study

ⅲ. Continuous and peaceful display of sovereignty

The 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 United States 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.

Case Study

ⅲ. Continuous and peaceful display of sovereignty

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.

Case Study

ⅳ. Conclusion Under the Palmas decision, three important rules for res

olving island territorial disputes were decided: • Firstly, title based on contiguity has no standing in inter

national law. • Secondly, title by discovery is only an inchoate （早期

的；未充分发展的） title. • Finally, if another sovereign begins to exercise continuo

us 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.

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