Public International Law: Chapter VII ー Territory: Land, Air, Outer Space

 Territory: Land, Air, Outer Space

Territory in International Law.

• Territory as an element of a state means an area over which a state has effective control. 
• As the Las Palmas case shows, control over territory is of the essence of a state. 
• The exact boundaries might be uncertain, but there should be a definitive core over which sovereignty is exercised. 
• Acquisition of territory more precisely means acquisition of sovereignty over territory. 
• Judge Huber in the Las Palmas case said that “sovereignty over a portion of the surface of the globe is the legal condition for the inclusion of such portion in the territory of any particular state.” 
• Territory includes:
1. land
2. maritime areas
3. airspace
4. outer space. 

Modes of Acquisition of Sovereignty over Territory.

• The traditional modes of acquisition include:
1. discovery and occupation
2. prescription
3. cession
4. conquest and subjugation
5. accretion

1. Discovery and Occupation

• Occupation is 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 occupant leaves the territory with the intention of not returning. 
• In the Western Sahara Case, the question was whether Western Sahara, inhabited as it was by organized tribes, was terra nullius. The ICJ answered the question thus:
• Whatever differences of opinion there may have been among jurists, 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. It shows that 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. On occasion, it is true, the word “occupation” was used in a non-technical sense denoting simply acquisition of sovereignty; but that 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 these terms. On the contrary, such agreements with local rulers, whether or not considered as an actual “cession” of the territory, were regarded as derivative roots of title, and not original titles obtained by occupation of terra nullius.
• In the present instance, the information furnished to the Court shows that at the time of colonization Western Sahara was inhabited by peoples which, if nomadic, were socially and politically organized into tribes and under chiefs competent to represent them.
• Discovery of terra nullius, moreover, is not enough to establish sovereignty. It must be accompanied by effective control. This is the teaching of the Las Palmas Case.
• Effective control, however, is relative and may depend on the nature of the case — e.g., whether the territory is inhabited or not and how fierce the occupants are. Where there are two or more claimants to a territory, effective control is also relative to the strength of claims. (Eastern Greenland Case PCIJ 1933).

The Island of Palmas

Perm. Ct. Arb. (1928)

• Palmas (also referred to as Miangas) is an island about two miles long by three fourths of a mile wide which at the time of this case had a population of about 750 and was of little strategic or economic value. It sits about halfway between the islands of Mindanao in the Philippines and Nanusa in the Netherlands Indies.
• It is, however, within the boundaries of the Philippines as defined by Spain and thus ceded to the United States in 1898. 
• In 1906 an American General, Leonard Wood, visited Palmas and discovered that the Netherlands also claimed sovereignty over the island. 
• On January 23, 1925, an agreement was signed between the United States and the Netherlands to submit the dispute to binding arbitration.  

WoN the Island of Palmas (or Miangas) in its entirety forms a part of territory belonging to the United States of America or of Netherlands territory.

• United States Claim: The United States bases its claim over the Philippines on its succession from Spain, citing discovery as the primary basis, backed by reliable sources and treaties like the Treaty of Munster in 1648.
• Sovereignty: Sovereignty signifies independence, the exclusive right to exercise state functions within a territory, and the duty to protect other states' rights and nationals. It involves continuous and peaceful display of authority, ensuring territorial integrity and inviolability. Continuous and peaceful display of territorial sovereignty is recognized as a valid title.
• Territorial Sovereignty: Territorial sovereignty involves exclusive rights and duties. It cannot merely exclude other states' activities; it must actively protect and manifest its presence, ensuring minimum protection under international law.
• Principle of Contiguity: The principle of contiguity, in the context of territorial sovereignty, suggests that islands or territories located in close proximity to a particular country's shores naturally belong to that country. 
• terra firma ー nearest continent or island of considerable size
• The principle of contiguity alone does not establish territorial sovereignty, especially for islands outside territorial waters. It is not a sufficient legal method for deciding questions of territorial sovereignty and can lead to arbitrary results.
• International Arbitral Jurisprudence: Acts of display of sovereignty hold greater weight than continuity of territory alone in determining territorial sovereignty, as observed in international arbitral jurisprudence, even if such acts are isolated. The dispute over Palmas (Miangas) questions the significance of contiguity in establishing territorial sovereignty.

In the opinion of the Arbitrator the Netherlands have succeeded in establishing the following facts:

1. The island is identical with a landmass that has been a part of two native states of the Island of Sangi (Talautse Isles) since at least 1700.
2.  These native states were connected to the Netherlands through contracts of suzerainty from 1677 onwards, conferring powers that justified considering the vassal state as part of Dutch territory.
3. Acts displaying state authority by either the vassal state or the Netherlands occurred between 1700 and 1898 and continued between 1898 and 1906.

Acts demonstrating Netherlands sovereignty over Palmas (or Miangas) were not numerous, especially in the 18th and early 19th centuries. However, considering the island's remote and sparsely inhabited nature, frequent displays of sovereignty were not expected. It suffices that such displays existed in 1898 and prior, providing a reasonable opportunity for other powers to ascertain the situation.

There is no evidence indicating sovereignty displays by Spain or any other power that could counterbalance Netherlands' manifestations. The absence of conflict between Spanish and Dutch authorities over Palmas (or Miangas) for more than two centuries indirectly supports exclusive Dutch sovereignty.

The title of discovery, even if not affected by previous treaties, would only exist as an inchoate claim, insufficient against a definite title established through continuous and peaceful sovereignty displays. The principle of contiguity as a basis for territorial sovereignty lacks foundation in international law.

Eastern Greenland Case PCIJ 1933

• Before proceeding to consider in detail the evidence submitted to the Court, it may be well to state that a claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involves two elements each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority. 
• Another circumstance which must be taken into account by any tribunal which has to adjudicate upon a claim to sovereignty over a particular territory, is the extent to which the sovereignty is also claimed by some other Power. In most of the cases involving claims to territorial sovereignty which have come before an international tribunal, there have been two competing claims to the  sovereignty, and the tribunal has had to decide which of the two is the stronger. One of the peculiar features of the present case is that up to 1931 there was no claim by any Power other than Denmark to the sovereignty over Greenland. Indeed, up till 1921, no Power disputed the Danish claim to sovereignty.
• It is impossible to read the records of the decisions in cases as to territorial sovereignty without observing that in many cases the tribunal has been satisfied with very little in the way of the actual exercise of sovereign rights, provided that the other State could not make out a superior claim. This is particularly true in the case of claims to sovereignty over areas in thinly populated or unsettled countries.

2. Prescription

• Prescription is also recognized as a mode of acquiring sovereignty over territory.
• Like occupation, however, prescription requires effective control. 
• But unlike occupation, the object of prescription is not terra nullius. 
• Thus the required length of effective control is longer than in occupation. 
• Moreover, prescription might be negated by a demonstrated lack of acquiescence by the prior occupant. (Las Palmas)

3. Cession 

• Cession, or acquisition of territory through treaty, is another mode. 
• United States acquired the Philippines through the Treaty of Paris.
• Sovereignty over Hong Kong is a more recent example of cession.
• In the middle of the 19th century, part of the colony of Hong Kong was ceded in perpetuity to Britain. 
• The largest section of the colony, the so called New Territories, was merely held under a lease that was due to expire in 1997. 
• After protracted negotiations, a Joint Declaration was signed through which the entire territory of Hong Kong would be given over to the sovereignty of China on July 1,1997. This has already been accomplished.
• A treaty of cession which is imposed by a conqueror is invalid. Thus there may be a situation where what prevails is merely a de facto regime.

4. Conquest 

• Conquest was in earlier days the taking possession of a territory through armed force. 
• For acquisition of conquered territory, it was necessary that the war had ended either by treaty or by indication that all resistance had been abandoned. 
• Moreover, the conqueror must have had the intention of acquiring the territory and not just of occupying it temporarily. 
• For instance, the U.S. in Germany had no intention of acquiring the territory.
• Today conquest as a mode of acquisition is proscribed by international law. 
• The 1970 Declaration of Principles of International Law Concerning Friendly Relations and Cooperation among States has this to say:
• “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 latest instance of a response to an attempted conquest was the action taken against Iraq when it invaded Kuwait.

5. Accretion and Avulsion 

• Accretion and avulsion can also lead to sovereignty over territory. 
• This is 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.

Q: Is contiguity a mode of acquisition? 

Because of the closeness of the Spratlys to Philippine territory, it has been argued that the area belongs to the Philippines by contiguity. 

The Las Palmas case is argument against contiguity 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.”

Intertemporal Law 

Laws on acquisition of territory have changed. 

Note for instance the changes on the legality of wars of conquest.
Which laws then are applicable to a controversy?

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

Airspace.

• Before the First World War, there were those who held that the airspace was completely free. The outbreak of the First World War brought about the realization that the use of the air had security implications. 
• Out of this realization came the approach which considers the air above as an extension of the territory below. 
• 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 has developed from the Chicago Convention on International Civil Aviation (1944) which entered into force in 1974. 
• The Chicago Convention created the International Civil Aviation Organization (ICAO), an agency of the United Nations, and prescribed the rules for international civil aviation.
• Articles 1 to 4 of the Convention set down the governing principles: 

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 the terms thereof. 

(d) The contracting States undertake, when issuing regulations for their state aircraft, that they will have due regard for the safety of navigation of civil aircraft. 

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. 

• As can be seen, the Convention does deal with “state aircraft” excepted to say in Article 3(a) that “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.” And “state aircraft” means “aircraft used in military, customs and police services.” 
• The Convention is about “civil aviation.” Flight over territory is classified into “non-scheduled” and “scheduled” fights. 

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 nonstop 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.

• The Chicago Convention attempts to provide protection for civilian aircraft. 
• Since the Convention, however, a number of incidents have taken place fatal to civilian aircraft. 
• In 1955 a civilian Israeli plane of El A1 Israel Airlines was shot down by Bulgaria. 
• In 1973, Israeli jets shot down a straying Libyan airliner. 
• In 1983, Russian jets shot down a Korean Airlines plane. 
• When the United States made the declaration in the Security Council that “sovereignty neither requires nor permits the shooting down of airlines in peacetime,” the USSR’s swift reply was that there was a sovereign right of every State to protect its borders including its airspace. 
• In 1953, Lissitzyn suggested a flexible rule with respect at least to state or military 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 — that is, in relation to the apprehended harmfulness of the intrusion.” 
• This implies that the aircraft must not only not 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 it is attacked.
• As to civilian aircraft, however, there are those who hold that civilian aircraft should never be attacked. In fact, even the Soviet Union justified its attack on the South Korean airliner by saying that it had mistaken the aircraft for an American reconnaissance aircraft.

Outer Space.

• The assertion under air space law used to be that air sovereignty extended to an unlimited extent, usque ad coelum. 
•  usque ad coelum ーup to the heavens
• The development of the law on outer space modified this assertion. Sovereignty over air space extends only until where outer space begins. 
• But where is that? There is as yet no definite answer to that question. 
• The answer will eventually come from technological capabilities of conventional aircraft to reach greater heights. 
• Different numbers ranging from fifty to one hundred miles from the earth have been mentioned. 
• Nonetheless, the development of outer space law has started. It is now accepted that outer space, wherever that might be, and celestial bodies, are not susceptible to appropriation by any state. 
• Among the first achievements in this area is the 1967 Treaty on the Exploration and Use of Outer Space. Some of its key provisions are the following

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 cooperation 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 maneuvers 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.

Practice Questions:

1. What does territory as an element of a state mean?
2. According to Judge Huber in the Las Palmas case, what is the legal condition for the inclusion of a portion of the surface of the globe in the territory of any particular state?
3. List the components included within the definition of territory in international law.
4. Give and define the traditional modes of acquisition of sovereignty over territory.
5. Define occupation as a mode of acquisition. What conditions are necessary for the acquisition of territory through occupation?
6. In the Western Sahara Case,  what was the question regarding terra nullius, and how was it answered?
7. What is the Island of Palmas, and why was it subject to a dispute?
8. How did the Las Palmas case influence the understanding of territorial sovereignty?
9. What is the significance of the Eastern Greenland Case PCIJ 1933 in understanding territorial sovereignty?
10. What is the principle of contiguity? Is it a sufficient basis for establishing territorial sovereignty? Why or why not?
11. What is terra firma?
12. How does the principle of contiguity influence the sovereignty claims over islands like the Spratlys?
13. According to the Intertemporal Law, which rules should be applied to a controversy regarding the acquisition of territory?
14. Define accretion and avulsion in the context of territorial sovereignty.
15. What is prescription as a mode of acquiring sovereignty over territory?
16. How is cession different from conquest in the context of acquiring territory?
17. Why is a treaty of cession imposed by a conqueror considered invalid?
18. How does the international community respond to attempts of conquest, as seen in the case of Iraq invading Kuwait?
19. What condition must be met for conquest to lead to the acquisition of territory?
20. Why is conquest as a mode of acquisition proscribed by international law today?
21. What is the historical perspective on airspace sovereignty before the First World War?
22. According to the Chicago Convention on International Civil Aviation, what does each state have complete and exclusive sovereignty over?
23. Define "state aircraft" as mentioned in Article 3 of the Chicago Convention.
24. How do international laws differentiate between state aircraft and civil aircraft in airspace sovereignty?
25. What is the significance of Article 5 of the Chicago Convention in terms of non-scheduled flight?
26. How has the Chicago Convention attempted to protect civilian aircraft?
27. What does the 1967 Treaty on the Exploration and Use of Outer Space state about the exploration and use of outer space?
28. According to the Outer Space Treaty, what are the prohibited activities related to celestial bodies?
29. What does the Outer Space Treaty state about the use of military personnel for scientific research or peaceful purposes?
30. How does the treaty regard astronauts and their activities in outer space?

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