Territory

Land, Air and Outer Space

Reporters : Donna Mae Gallardo Carla Jade Mesina

Territory
The fixed and permanent portion on the earths surface inhabited by the people of the

state and over which it has supreme authority

Consists of the portion of the surface of the globe on which that State settles and over which it has supreme authority An exercise of sovereignty, covering not only

land, but also the atmosphere as well

Modes of Acquisition of Sovereignty over Territory:

1. Discovery and Occupation 2. Prescription 3. Cession 4. Conquest and Subjugation 5. Accretion and Avulsion

Discovery and Occupation

Occupation the acquisition of terra nullius, that is, territory which prior to occupation belonged to no state or which may have been abandoned by a prior occupant. There is abandonment when the occupation leaves 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.

 Mere discovery gives only an Inchoate

Right of Discovery
Effect of this right is that it bars other states, within a reasonable period of time, from entering the territory, so that the discovering

state may establish a settlement therein and commence administration and occupation. Once the discovering state begins exercising sovereign rights over the territory, the inchoate right ripens and is perfected into a full title

Doctrine of Effective Occupation

Discovery alone gives only an inchoate title; it must be followed within a reasonable time

by effective occupation
Effective occupation does not necessarily require continuous display of authority in

every part of the territory claimed

An occupation is made valid only with respect to and extends only to the area

effectively occupied

 Effective control may depend on the nature

of the case e.g., whether the territory is inhabited or not and how fierce the occupants are
Effective control is also relative to the

strength of claims e.g., where there are two or more claimants to a territory

Western Sahara Case

Issue : Whether or not Western Sahara, inhabited by organized tribes, was terra nullius
Held : The State practice of the relevant period indicates that territories inhabited by tribes or peoples having a social and political organization were not regarded as terra nullius.

In the case of such territories the acquisition of sovereignty was not generally considered as effected unilaterally through occupation of terra nullius by original title but through agreements concluded with local rulers.

Las Palmas Case

Issue : Whether the Island of Palmas (or Miangas) in its entirety forms a part of territory belonging to the United State of America or of Netherlands territory Held : The title of discovery, under the most favorable and most extensive interpretation, exist only as an inchoate title, as a claim to establish sovereignty by effective occupation. An inchoate title however cannot prevail over a definite title founded on continuous and peaceful display of sovereignty. The Netherlands title of sovereignty, acquired by continuous and peaceful display of state authority during the long period of time going probably back beyond the year 1700, therefore holds good. The island of Palmas (or Miangas) forms in its entirety a part of Netherlands territory.

Prescription
Mode of acquiring sovereignty over territory that requires effective control
The object of prescription is not terra nullius Required length of effective control is longer

than in occupation
Maybe negated by a demonstrated lack of

acquiescence by the prior occupant

Cession
Acquisition of territory through treaty However, a treaty of cession imposed by a

conqueror is INVALID.
2 Kinds : Total Cession and Partial Cession
o Total Cession - comprises the entirety of a States domain - the ceding State is absorbed by the acquiring State and ceases to exist ex.: Cession of Korea to Japan under the 22 Aug. 1910 Treaty

o Partial Cession

- comprises only a fractional portion of the ceding States territory - cession of the Philippine Islands by Spain to the US in the Treaty of Paris of 10 Dec. 1988 Forms: a) Treaty of Sale ex.: (1) Sale by Russia of Alaska to US (2) Sale by Spain of Caroline Islands to Germany b) Free Gifts ex: (1) Cession of a portion of the HorseShoe Reef in Lake Erie by UK to US

Conquest
Defined as the taking possession of a territory

through armed force.

For acquisition of conquered territory, it is

necessary that the war had ended either by treaty or by indication that all resistance had been abandoned.
The conqueror must have had the intention of

acquiring the territory and not just occupying it temporarily

Proscribed by international law

 The territory of a State shall not be the

subject of acquisition by another State resulting from the threat or use of force. No territorial acquisition resulting from the use or threat of force shall be recognized as legal . (1970 Declaration of Principles of International Law Concerning Friendly Relations and Cooperation among States)

Accretion and Avulsion

Sovereignty by operation of nature Accretion is the gradual increase of

territory by the action of nature

Avulsion is a sudden 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)

Airspace

 Each state has exclusive jurisdiction over

the air space above its territory. Therefore, consent for transit must be obtained from the subjacent nation.
The present regime on air navigation stemmed from the Chicago Convention on International Civil Aviation

Chicago Convention on International Civil Aviation of 1944

Entered into force in 1974 Created the International Civil Aviation

Organization (ICAO), an agency of the United Nations and prescribed the rules for rules international civil aviation. The Chicago conventions attempts to provide protection for civilian aircraft.

 In its effort to control the movements of intruding aircraft the territorial sovereignty

must not expose the aircraft and its occupants to unnecessary and unreasonably great danger.
This implies that the aircraft must not only 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 the attacked.

Five air freedoms to observe

1. over flight without landing 2. landing for non-traffic purposes 3. put down traffic from state to airline 4. embark traffic destined for state of

aircraft 5.embark traffic or put down traffic to or from a third State.

Governing Principles of the Convention

Every State has complete and exclusive

sovereignty over the airspace above its territory (Art.1 on Sovereignty)

Territory of the State land areas and

territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State (Art.2 on Territory)

 Article 3 on Civil and State Aircraft: o The Convention shall only be applicable to civil aircraft

and not to state aircraft

o State aircraft aircraft used in military, customs and

police services
o 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
o When issuing regulations for their state aircraft,

contracting States shall undertake to have due regard for the safety of navigation of civil aircraft

 On Misuse of Civil Aviation (Art.4): Each contracting State agrees not to use

civil aviation for any purpose inconsistent with the aims of the Convention.
State aircraft means aircraft used in military, custom and police services. Flight over territory is classified into nonscheduled flights and scheduled flights.

Right to Non-Scheduled Flights (Art.5) :

Aircraft not engaged in scheduled

international air services shall have the right, subject to the terms of the Convention, to make flights into or in transit non-stop across its territory and to make stops for non-traffic purposes without the necessity of obtaining prior permission, subject to the right of the State flown over to require landing.

 Contracting States, however, reserves the right, for reasons of

safety of flight, to require aircraft desiring to proceed over regions which are inaccessible or without adequate air navigation facilities to follow prescribed routes, or to obtain special permission for such flights.
Such aircraft, if engaged in the carriage of passenger,

cargo, or mail for remuneration or hire on the other than scheduled international air services, shall also, subject to the provision of art. 7 , have the privilege of taking or discharging passengers, cargo, or mail, subject to the right of any State where such embarkation or discharge takes place to impose such regulations, conditions or limitations as it may consider desirable

Scheduled Air Services (Art.6) : No scheduled international air services may be operated over or into the territory of a contracting States, except with the special permission or other authorization of that State, and in accordance with the terms of such permission or authorization.

Cabotage (Art.7) :
Right to refuse permission to the aircraft of the other

contracting States to take on in its territory passengers, mail and cargo carried for remuneration or hire and destined for another point within its territory.
Contracting state to undertake not to enter into any

arrangements which specifically grant any such privilege on an exclusive basis to any other State or an airline of any other State or an airline of any other state, and not to obtain, and not to obtain any such exclusive privilege from any other States.

Outer Space

1967 Treaty on the Exploration and Use of the Outer Space

The exploration and use of outer space, including the

moon and other celestial bodies, shall be carried out for the benefit and in the interest of all countries and shall be the province of all mankind
Outer space, including the moon and other celestial

bodies, shall be free for exploration and use by all States without discrimination of any kind
Freedom of scientific investigation in outer space,

including the moon and other celestial bodies, and States shall facilitate and encourage international cooperation in such investigation

 Outer space, including the moon and other

celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means
State Parties shall carry on activities in the

exploration and use of the outer space, including the moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding

 State Parties undertake not to place in orbit around the Earth any objects carrying

nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner
The Moon and other celestial bodies shall be

used by the State Parties exclusively for peaceful purposes

 Establishment of military bases, installations and

fortifications, the testing of any type of weapons and the conduct of military maneuvers on celestial bodies shall be forbidden. The use of any equipment or facilities necessary for peaceful exploration of the Moon and other celestial bodies shall not be prohibited
Astronauts shall be regarded as envoys of mankind in

outer space and shall render to them all possible assistance in the event of accident, distress, or emergency landing on the territory of another State Party or on the high seas. When astronauts make such a landing, they shall be safely and promptly returned to the State of registry of their space vehicle