Territory: Land, Air, Outer Space
Territory as an element of a state means an area over which a
state has effective control. As the Las Palmas case, infra,
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 land, maritime areas, airspace and outer
space. The scope of a state’s jurisdiction over maritime areas
will be considered in another chapter. In this chapter, only land
area, air space and outer space will be considered.
Modes of Acquisition of Sovereignty over Territory
Some of the questions regarding territory are now of historical
interest merely. But how they are acquired is still worth
examining. The roots of the law on territorial sovereignty are
traceable to Roman law provisions governing ownership and
possession. Similarly the classification of the different methods
of acquiring territory comes from Roman rules of acquiring
property. The traditional modes of acquisition include discovery
and occupation, prescription, cession, conquest and
subjugation, and accretion.
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.
The United States, as successor to the rights of Spain over the
Philippines, bases its title in the first place on discovery. The
existence of sovereignty thus acquired is, in the American
view, confirmed not merely by the most reliable cartographers
and authors, but also by treaty, in particular by the Treaty of
Munster, of 1648, to which Spain and the Netherlands are
themselves Contracting Parties. As, according to the same
argument, nothing has occurred of a nature, in international
law, to cause the acquired title to disappear, this latter title
was intact at the moment when, by the Treaty of December
10th, 1898, Spain ceded the Philippines to the United States.
In these circumstances, it is, in the American view,
unnecessary to establish facts showing the actual display of
sovereignty precisely over the Island of Palmas (or Miangas).
The United States Government finally maintains that Palmas
(or Miangas) forms a geographical part of the Philippine group
and in virtue of the principle of contiguity belongs to the Power
having the sovereignty over the Philippines.
Sovereignty in the relation between States signifies
independence. Independence in regard to a portion of the
globe is the right to exercise therein, to the exclusion of any
other State, the functions of a State. The development of the
national organization of States during the last few centuries
and, as a corollary, the development of international law, have
established this principle of the exclusive competence of the
State in regard to its own territory in such a way as to make it
the point of departure in settling most questions that concern
international relations.
Titles of acquisition of territorial sovereignty in present-day
international law are either based on an act of effective
apprehension, such as occupation or conquest, or, like cession,
presuppose that the ceding and the cessionary Power or at
least one of them, have the faculty of effectively disposing of
the ceded territory. In the same way natural accretion can only
be conceived of as an accretion to a portion of territory where
there exists an actual sovereignty capable of extending to a
spot which falls within its sphere of activity. It seems therefore
natural that an element which is essential for the constitution
of sovereignty should not be lacking in its continuation. So true
is this, that practice, as well as doctrine, recognizes — though
under different legal formulae and with certain differences as
to the conditions required — that the continuous and peaceful
display of territorial sovereignty (peaceful in relation to other
States) is as good as a title. The growing insistence with which
international law, ever since the middle of the 18th century,
has demanded that the occupation shall be effective would be
inconceivable, if effectiveness were required only for the act of
acquisition and not equally for the maintenance of the right.
Territorial sovereignty, as has already been said, involves the
exclusive right to display the activities of a state. This right has
as corollary a duty: the obligation to protect within the territory
the rights of other states, in particular their right to integrity
and inviolability in peace and in war, together with the rights
which each state may claim for its nationals in foreign territory.
Without manifesting its territorial sovereignty in a manner
corresponding to circumstances, the state cannot fulfill this
duty. Territorial sovereignty cannot limit itself to its negative
side, i.e., to excluding the activities of other states; for it
serves to divide between nations the space upon which human
activities are employed, in order to assure them at all points
the minimum of protection of which international law is the
guardian.
The principle that continuous and peaceful display of the
functions of state within a given region is a constituent
element of territorial sovereignty is not only based on the
conditions of the formation of independent states and their
boundaries (as shown by the experience of political history) as
well as on an international jurisprudence and doctrine widely
accepted; this principle has further been recognized in more
than one federal state, where a jurisdiction is established in
order to apply, as need arises, rules of international law to the
interstate relations of the state’s members.
Manifestations of territorial sovereignty assume, it is true,
different forms, according to conditions of time and place.
Although continuous in principle, sovereignty cannot be
exercised in fact at every moment on every point of territory.
The intermittence and discontinuity compatible with the
maintenance of the right necessarily differ according as
inhabited or uninhabited regions are involved, or regions
enclosed within territories in which sovereignty is incontestably
displayed or again regions accessible from, for instance, the
high seas. It is true that neighboring states may by convention
fix limits to their own sovereignty, even in regions such as the
interior of scarcely explored continents where such sovereignty
is scarcely manifested, and in this way each may prevent the
other from any penetration of its territory. The delimitation of
hinterland may also be mentioned in this connection.
The title alleged by the United States of America as
constituting the immediate foundation of its claim is that of
cession, brought about by the Treaty of Paris, which cession
transferred all rights of sovereignty which Spain may have
possessed in the region indicated in Article III of the said
Treaty and therefore also those concerning the Island of
Palmas (or Miangas).
It is evident that Spain could not transfer more rights than she
herself possessed.
It is recognized that the United States communicated, on
February 3rd, 1899, the Treaty of Paris to the Netherlands, and
that no reservations were made by the latter in respect of the
delimitation of the Philippines in Article III. The question
whether the silence of a third Power, in regard to a treaty
notified to it, can exercise any influence on the rights of this
Power, or on those of the Powers signatories of the treaty, is a
question the answer to which may depend on the nature of
such rights. Whilst it is conceivable that a conventional
delimitation duly notified to third Powers and left without
contestation on their part may have some bearing on an
inchoate title not supported by any actual display of
sovereignty, it would be entirely contrary to the principles laid
down above as to territorial sovereignty to suppose that such
sovereignty could be affected by the mere silence of the
territorial sovereign as regards a treaty which has been notified
to him and which seems to dispose of a part of his territory.
In any case for the purpose of the present affair it may be
admitted that the original title derived from discovery belonged
to Spain.
In the opinion of the Arbitrator the Netherlands have
succeeded in establishing the following facts:
a. The Island of Palmas (or Miangas) Is identical with an
island designated by this or a similar name, which has
formed, at least since 1700, successively a part of two of
the native States of the Island of Sangi.
b. These native States were from 1677 onwards connected
with the East India Company, and thereby with the
Netherlands, by contracts of suzerainty, which conferred
upon the suzerain such powers as would ‘justify his
considering the vassal state as a part of his territory.’
c. Acts characteristic of state authority exercised either by
the vassal state or by the suzerain Power in regard
precisely to the Island of Palmas (or Miangas) have been
established as occurring at different epochs between 1700
and 1898, as well as in the period between 1898 and
1906.
The acts of indirect or direct display of Netherlands sovereignty
at Palmas (or Miangas), especially in the 18th and early 19th
centuries are not numerous, and there are considerable gaps
in the evidence of continuous display. But apart from the
consideration that the 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 far distant period. It may
suffice that such display existed in 1898, and had already
existed as continuous and peaceful before 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, to have, according to local conditions, a
reasonable possibility for ascertaining the existence of a state
of things contrary to her real or alleged rights.
There is moreover no evidence which would establish any act
of display of sovereignty over the island by Spain or another
Power, such as might counterbalance or annihilate the
manifestations of Netherlands sovereignty. As to third Powers,
the evidence submitted to the Tribunal does not disclose any
trace of such action, at least from the middle of the 17th
century onwards. These circumstances, together with the
absence of any evidence of a conflict between Spanish and
Netherlands authorities during more than two centuries as
regards Palmas (or Miangas), are an indirect proof of the
exclusive display of Netherlands sovereignty.
The conditions of acquisition of sovereignty by the Netherlands
are therefore to be considered as fulfilled. It remains now to
be seen whether the United States as successors of Spain are
in a position to bring forward an equivalent or stronger title.
This is to be answered in the negative.
The title of discovery, if it had not already been disposed of by
the Treaties of Munster and Utrecht, would, 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 title of contiguity, understood as a basis of territorial
sovereignty, has no foundation in international law....
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.
For these reasons the Arbitrator decides that: The Island of
Palmas forms in its entirety a part of Netherlands territory.
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 Permanent Court of Justice deciding in favor of Denmark,
said:
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.
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)
Cession
Cession, or acquisition of territory through treaty, is another
mode. Thus the 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.
It should also be noted, however, that 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.
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.
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.
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.
Is contiguity a mode of acquisition?
Because of the closeness of the Spratleys 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 frma.”
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.
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.
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 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
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.