PIL Notes

Chapter 7
Territory: Land, Air, Outer Space

1. What is Territory?
Territory is an area over which a state has effective control. The boundaries
might be uncertain but there should be a definitive core over which
sovereignty is exercised.

2. True or False. Acquisition of territory means acquisition of sovereignty over territoty.

TRUE.

3. What are the scope of territory? (L-M-A-O)

a. Land;
b. Maritime Areas;
c. Airspace;
d. Outerspace.

4. What are the Modes of Acquisition of Sovereignty over Territory.

a. Discovery and Occupation;
b. Prescription;
c. Cession;
d. Conquest;
e. Subjugation;
f. Accretion.

5. Define Occupation as a Mode of Acquisition of Sovereignty over Territory.

Occupation is the acqusiiton of terra nullius. Hence, territory which prior to
 occupation belonged to no state or which may have been abandoned by a
prior occupant.

6. When is there abandonment?

When the occupant leaves the territory with the intention of not returning.

7. True or False. Territories inhabited by tribes or peoples having a social and political
organization ARE NOT regarded as terra nullius.
TRUE.
In case of such territories, the acquisiton of sovereignty was not generally
considered as effected unilaterally through "occupation" of terra nullius by
original title but through agreements concluded with local rulers.
The term "occupation" did not signify that the acquisition of sovereignty through
such agreements with authorities of the country was regarded as an "occupation"
of a "terra nullius" in the proper sense of the terms.
Such agreements with local rulers were considered as derivative roots of title,
and not original titles obtained by occupation of terra nullius. [Western Sahara Case]

8. True or False. Discovery of terra nullius not enough to establish soverignty. It must be
accompanied by effective control.
TRUE. This is the teaching of the Las Palmas Case.

9. Discuss the Las Palmas Case.

Palmas (Miangas) is an island halfway between the islands of Mindanao, PH
and Nanusa, Netherlands Indies. It is however, within the bounderies of the
Philippines as defined by Spain and thus ceded to the U.S.
It was discovered that the Netherlands also claimed sovereignty over the island.
An agreement was signed between the U.S. and the Netherlands to submit the
dispute to binding arbitration.
The issue was whether the Island of Palmas/Miangas forms a part of territory
belonging to the US of America or of Netherlands.

The Court ruled that the Island of Palmas/Miangas forms in its entirety a part
 of Netherlands territory.
Manifestations of sovereignty over a small and distant island, inhabited only
by natives, cannot be expected to be frequent. It is not necessary that the
display of sovereignty should go back to a very distant period. It may suffice
that such display existed in 1898 and had already existed as continuous and
peaceful that date long enough to enable any Power who might have
considered herself as possessing sovereignty over the island, or having a
claim to sovereignty.
No evidence would establish any act of display of sovereignty over the island
by Spain or another Power.
The title of discover 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 a long period of time going probably back
beyond the year 1700, therefore holds good.

10. Discuss the Eastern Greenland Case PCIJ 1933.

In this case, it is shown that effective control is relative and may depend on
the nature of the case (whether the territory is inhabited or not and how fierce
the occupants are). Where there are 2 or more claimnats to a territory,
effective control is also relative to the strength of claims.
It was discussed that a claim to sovereignty merely upon continued display of
authority has 2 elements: (1) intention and will to act as a sovereign; (2) actual
exercise or display of such authority.
Another circumstance is the extent to which the sovereignty is also claimed
by some other Power.
In the case, there was no claim by any other Power other than Denmark to
the sovereignty over Greenland.

11. Differentiate Prescription from Occupation.

Both Prescription and Occupation requries effective control. However, unlike
occupation, the object of Prescription is not terra nullius. Thus, the required
length of effective control is longer than in occupation. It can also be negated
by a demonstrated lack of acquiescence by the prior occupant.
12. What is Cession?
Cession is the acquisition of territory through treaty (US acquired PH through
Treaty of Paris; Sovereignty over Hongkong).

13. True or False. A treaty of cession imposed by a conqueror is VALID.

FALSE.

14. True or False. Conquest is the taking of possession of a territory though armed force
and is now proscribed by international law.
TRUE.
The territory of a State shall not be the object 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. [ The 1970
Declaration of Principles of International Law Concerning Friendly Relations and
Cooperation among States]

15. What is necessary for the acquisition of conquered territory?

a. War had ended either by treaty;
b. Indication that all resistance had been abandoned; and,
c. Conqueror must have the intention of acquiring the territory and not just
occupying it temporarily.

16. Differentiate Accretion and Avulsion.

Accretion is the gradual increase of territory by the action of nature while
Avulsion is a sudden change resulting for instance from the action of a
volcano.
These are sovereignty by operation of nature.

17. Is contiguity a mode of acquisition?

The Las Palmas Case is argument against continguity as a basis for
sovereignty when it says: 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 (dry land : solid
ground.)

18. Which law should be applied when there are changes on the legality of wars of
conquest?
The rules in effect at the time of the acquisiton should be applied.

19. Discuss the views on the sovereignty of Airspace before the First World War.
Before the First World War, there were those who held that air-space was
completely free. The outbreak of the First World War brought about the
realization that the use of air had security implications. Each state has
exclusive jurisdiction over the air space above its territory. Therefore, consent
for transit must be obtained from the subjacent nation.

20. True or False. The Chicago Convention created the International Civil Aviation
Organization (ICAO), an agency of the UN which prescribed the rules for international
civil aviation.
TRUE.

21. Discuss Articles 1-6 of the Convention.

Article 1 - Sovereignty.
The contracting States recognize that every State has complete and
exclusive sovereignty over the airspace above its territory.

Article 2 - Territory.
For the purposes of this Convention the territory of a State shall be deemed
to be the land areas and territorial waters adjacent thereto under the
sovereignty, suzerainty, protection or mandate of such State.

Article 3 - Civil and State Aircraft.

a) This Convention shall be applicable only to civil aircraft, and shall not be
applicable to state aircraft.
 b) Aircraft used in military, customs and police services shall be deemed to
be state aircraft.
c.) 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 terms thereof.

Article 4 - Misuse of civil aviation.

Each contracting State agrees not to use civil aviation for any purpose
inconsistent with the aims of this Convention.

Article 5 - Right of non-scheduled flight.

Each contracting State agrees that all aircraft of the other contracting States,
being aircraft not engaged in scheduled international air services shall have
the right, subject to the observance of the terms of this 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, and subject
to the right of the State flown over to require landing. Each contracting State
nevertheless 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 passengers, cargo, or mail for

remuneration or hire on other than scheduled international air services, shall
also, subject to the provisions of Article 7, have the privilege of taking on 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.

Article 6 - Scheduled air services.

No scheduled international air service may be operated over or into the territory
of a contracting State, except with the special permission or other authorization of that
State, and in accordance with the terms of such permission or authorization.

Article 7 - Cabotage
Each contracting State shall have the right to refuse permission to the aircraft
 of 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.
Each contracting State undertakes 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, and not to obtain any such exclusive privilege
from any other State.

22. True or False. The assertion under air space law used to be that air sovereignty
extended to an unlimited extent. It is now accepted that outer space and celestial bodies
are not susceptible to appropriation by any State.
TRUE.

23. Discuss Article 1-5 of the 1967 Treaty on the Exploration and Use of Outer Space.
ARTICLE I
The exploration and use of outer space, including the moon and other
celestial bodies, shall be carried out for the benefit and in the interests of all
countries, irrespective of their degree of economic or scientific development,
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, on a basis of
equality and in accordance with international law, and there shall be free access to
all areas of celestial bodies.
There shall be freedom of scientific investigation in outer space, including the
moon and other celestial bodies, and States shall facilitate and encourage
international co-operation in such investigation.

ARTICLE II
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.

ARTICLE III
States Parties to the Treaty shall carry on activities in the exploration and use
of 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 co-
operation and understanding.

ARTICLE IV
States Parties to the Treaty 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 all States Parties to
the Treaty exclusively for peaceful purposes. The establishment of military
bases, installations and fortifications, the testing of any type of weapons and
the conduct of military manoeuvres on celestial bodies shall be forbidden.
The use of military personnel for scientific research or for any other peaceful
purposes shall not be prohibited. The use of any equipment or facility
necessary for peaceful exploration of the moon and other celestial bodies
shall also not be prohibited.

ARTICLE V
States Parties to the Treaty shall regard astronauts 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.
In carrying on activities in outer space and on celestial bodies, the astronauts
of one State Party shall render all possible assistance to the astronauts of
other States Parties.
States Parties to the Treaty shall immediately inform the other States Parties
to the Treaty or the Secretary-General of the United Nations of any
phenomena they discover in outer space, including the moon and other
celestial bodies, which could constitute a danger to the life or health of
astronauts.