One of the domains of territory is the aerial domain. It includes the air directly above the state's terrestrial and fluvial domains, all the way up to where the outer space begins.
The International Convention on Civil Aviation holds that every state has complete and exclusive sovereignty over the air space above its territory. It also regulates flight of civil aircraft over the territory of another state except by special agreement or otherwise, and in accordance with the terms thereof.
With the development of modern air navigation, it has been suggested as a better rule to allow innocent passage to a certain height in order to provide freedom of transportation.
Showing posts with label territory. Show all posts
Showing posts with label territory. Show all posts
Wednesday, June 09, 2010
MODES OF ACQUIRING TERRITORY
The traditional modes of acquiring territory of a state are:
(a) discovery, (b) occupation, (c) prescription, (d) cession, (e) annexation, (f) conquest, (g) accretion and (h) avulsion.
Discovery is the oldest method of acquiring title to territory. However, discovery alone would not suffice to establish legal title. It is necessary that the discovered area must be physically occupied. Related to title by discovery is the hinterland doctrine or the principle of continuity. If a state has made a settlement, it has a right to assume sovereignty over all adjacent vacant territory, which is necessary to the integrity and security of the settlement.
Occupation is the intentional acquisition by a state over a territory which at the time of claim not under the sovereignty of any state. There are two requirements: (1) the territory subject of claim must not be under the sovereignty of any state (terra nullius); and (2) the state must have effectively occupied the territory, that is, the state claiming the territory must have exercised immediate occupation (corpus occupandi) on the territory after it displayed its intention to occupy (animus occupandi).
There are two elements of effective occupation. One is the intention and will to act as sovereign (animus), and two is the peaceful and continuous display of state authority (factum). The intention can be displayed from the simple fact of publishing notices of sovereignty in various state journals or issuing laws on territorial assertions. The display of state authority must be peaceful and continuous. Mere protests from rival claimant states do not lose the peaceful character of the display of state authority. However, consistent protests over a long period of time if not rebutted by the claimant state may disturb the peaceful character of the display of state authority. The continuous display of state authority encompasses two ideas: (1) that the display of authority is ongoing; and (2) the display of state authority must exist up to the "critical date". The critical date in a territorial dispute is the date on which the location of territorial sovereignty is decisive. Normally it is the date of the origin of the dispute. The state which can present an effective title in the period immediately preceding the critical date has the superior claim.
Prescription means continued occupation over a long period of time by one state of territory actually and originally belonging to another state. There are four requirements of prescription: (1) the possession must be exercised in the form of actual exercise of sovereign authority; (2) the possession must be peaceful and uninterrupted; (3) the possession must be public; and (4) the possession must be for a long period of time. The peaceful and continuous display is also an essential element although as compared to occupation, prescription requires a stricter proof and longer period of the display of authority. Moreover, any protest or objection by the losing state destroys the peaceful display of authority of the claiming state.
Cession is the transfer of territory usually by treaty from one state to another. Concomitant of transfer of territory is the transfer of sovereignty from the owner state to another state. And since cession is a bilateral transaction, the parties involved are states. Cession may also be in the form of exchange of territory or in the form gift or donation or devise.
Conquest is acquiring territory by the use of force. The practice before was after conquest, the conqueror annexed the conquered territory to his state. Thus, conquest first takes place followed by annexation. But with the establishment of the United Nations, conquest is no longer acceptable in the international community.
A state may also increase or decrease its territory through accression and avulsion. Accression is the attainment of sovereignty over new land due to slow movement of natural forces. Example of this is the gradual movement of a river bed. On the other hand, if the natural forces happened suddenly, like creation of an island in territorial waters due to volcanic eruption, it is referred as avulsion.
Related cases:
(a) discovery, (b) occupation, (c) prescription, (d) cession, (e) annexation, (f) conquest, (g) accretion and (h) avulsion.
Discovery is the oldest method of acquiring title to territory. However, discovery alone would not suffice to establish legal title. It is necessary that the discovered area must be physically occupied. Related to title by discovery is the hinterland doctrine or the principle of continuity. If a state has made a settlement, it has a right to assume sovereignty over all adjacent vacant territory, which is necessary to the integrity and security of the settlement.
Occupation is the intentional acquisition by a state over a territory which at the time of claim not under the sovereignty of any state. There are two requirements: (1) the territory subject of claim must not be under the sovereignty of any state (terra nullius); and (2) the state must have effectively occupied the territory, that is, the state claiming the territory must have exercised immediate occupation (corpus occupandi) on the territory after it displayed its intention to occupy (animus occupandi).
There are two elements of effective occupation. One is the intention and will to act as sovereign (animus), and two is the peaceful and continuous display of state authority (factum). The intention can be displayed from the simple fact of publishing notices of sovereignty in various state journals or issuing laws on territorial assertions. The display of state authority must be peaceful and continuous. Mere protests from rival claimant states do not lose the peaceful character of the display of state authority. However, consistent protests over a long period of time if not rebutted by the claimant state may disturb the peaceful character of the display of state authority. The continuous display of state authority encompasses two ideas: (1) that the display of authority is ongoing; and (2) the display of state authority must exist up to the "critical date". The critical date in a territorial dispute is the date on which the location of territorial sovereignty is decisive. Normally it is the date of the origin of the dispute. The state which can present an effective title in the period immediately preceding the critical date has the superior claim.
Prescription means continued occupation over a long period of time by one state of territory actually and originally belonging to another state. There are four requirements of prescription: (1) the possession must be exercised in the form of actual exercise of sovereign authority; (2) the possession must be peaceful and uninterrupted; (3) the possession must be public; and (4) the possession must be for a long period of time. The peaceful and continuous display is also an essential element although as compared to occupation, prescription requires a stricter proof and longer period of the display of authority. Moreover, any protest or objection by the losing state destroys the peaceful display of authority of the claiming state.
Cession is the transfer of territory usually by treaty from one state to another. Concomitant of transfer of territory is the transfer of sovereignty from the owner state to another state. And since cession is a bilateral transaction, the parties involved are states. Cession may also be in the form of exchange of territory or in the form gift or donation or devise.
Conquest is acquiring territory by the use of force. The practice before was after conquest, the conqueror annexed the conquered territory to his state. Thus, conquest first takes place followed by annexation. But with the establishment of the United Nations, conquest is no longer acceptable in the international community.
A state may also increase or decrease its territory through accression and avulsion. Accression is the attainment of sovereignty over new land due to slow movement of natural forces. Example of this is the gradual movement of a river bed. On the other hand, if the natural forces happened suddenly, like creation of an island in territorial waters due to volcanic eruption, it is referred as avulsion.
Related cases:
- The Island of Palmas (Miangas) Arbitration, The Netherlands vs. United States
- Kalayaan Group of Islands
- Western Sahara Case
- Eastern Greenland Case
- Clipperton Island Case
- Pulau Ligitan and Pulao Sipadan Case, Indonesia vs. Malaysia
- Pedra Branca and Pulau Bato Puteh, Malaysia vs. Singapore
Monday, June 07, 2010
OUTER SPACE THEORY
The Outer Space Theory is an international multilateral agreement that sets forth the fundamental principles governing the international law of outer space. Over eighty (80) states are parties to the Outer Space Treaty.
The Outer Space Theory provides that outer space, including the moon and other celestial bodies, is free for exploration and use by all states and cannot be claimed by any state. Any exploration and use must be for the benefit of all states on a basis of equality and in accordance with international law and due regard to interests of other states. The explorations and use must not result to any harmful contamination of the outer space and the earth as well.
The state conducting space activities must as far as practicable disclose information about such activities. Stations and equipment should be open in case other states demand for inspection. For activities that are sponsored by non-government organizations, authorization and supervision of the government bearing international responsibility of such activities are required. On the other hand, responsibility is on the organization and its members if the activities are under intergovernmental organizations. Further, the state that launched or authorized the launching of an object into the outer space is liable for any damage it may cause.
The austronauts are regarded as envoys of mankind in outer space. In case of distress or emergency landing in another state, they must be promptly returned to the state of the space vehicle's registry.
Finally, the treaty also demilitarizes the moon and other celestial bodies.
MOON TREATY
All activities on the moon are to be carried out in the interest of peace with due regard to the interest of all the parties and other states. The moon is demilitarized and nuclear weapons or other weapons of mass destruction should not be deposited in it. (Coquia and Santiago, 2005).
photos courtesy of http://www.googlelunarxprize.org/ and
THE PHILIPPINES AND THE ARCHIPELAGIC DOCTRINE
In various conferences of the United Nations on the Law of the Sea, the Philippines and other archipelago states proposed that an archipelagic state composed of groups of islands forming a state is a single unit, with the islands and the waters within the baselines as internal waters.By this concept (archipelagic doctrine), an archipelago shall be regarded as a single unit, so that the waters around, between, and connecting the islands of the archipelago, irrespective of their breadth and dimensions, form part of the internal waters of the state, subject to its exclusive sovereignty.
Despite the opposition of maritime powers, the Philippines and four other states (Indonesia, Papua New Guinea, Fiji and Bahamas) got the approval in the UN Convention on the Law of the Sea held in Jamaica last December 10, 1982. They were qualified as archipelagic states. The archipelagic doctrine is now incorporated in Chapter IV of the said convention. It legalizes the unity of land, water and people into a single entity
photo courtesy of gmanews.tv
The Philippines bolstered the archipelagic principle in defining its territory when it included in Article 1 of the 1987 Constitution the following:
:
"The national territory comprises the Philippine Archipelago, with all the islands and waters embraced therein xxx"; and
"The waters around, between and connecting the islands of the archipelago, regardless of their dimensions, form part of the internal waters of the Philippines."
The archipelagic principle however is subject to the following limitations:
a) respect for the right of the ship and other states to pass through the territorial as well as archipelagic waters
b) respect to right of innocent passage
c) respect for passage through archipelagic sea lanes subject to the promulgation by local authorities of pertinent rules and regulations.
THE PHILIPPINE TERRITORY
photo courtesy of jibrael_2007
The scope of the Philippine territory is found in Article I of the 1987 Philippine Constitution. It provides:
"The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines."
For purposes of analysis, Philippine national territory includes the following:
(a) the Philippine archipelago, with all the islands and waters embraced therein;
(b) all other territories over which the Philippines has sovereignty or jurisdiction consisting of territorial, fluvial and aerial domains;
(c) the territorial sea, the seabed, the subsoil, and insular shelves and other submarine areas; and
(d) the waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions.
photo courtesy of http://madeandi.staff.ugm.ac.id/images/mz.JPG
Seabed is the land that holds the sea, lying beyond the seashore, including mineral and natural resources. It is at the top portion of the submarine area.
The subsoil is everything beneath the surface soil and the seabed including mineral and natural resources.
Insural shelves are the submerged portions of a continent or offshore island, which slope gently seaward from the low waterline to a point where a substantial break in grade occurs, at which point the bottom slopes seaward at a considerable increase in slope until the great ocean depths are reached; and
Other submarine areas refers to those which are under the territorial sea. They are ottherwise referred to as seamount, trough, trench, deep, bank, shoal, and reef.
Useful links:
http://www.ellentordesillas.com/?p=2346
http://verafiles.org/docs/pd1596.pdf
http://www.newsflash.org/2004/02/pe/pe004395.htm
http://www.positivenewsmedia.net/am2/publish/Main_News_1/PGMA_signs_RP_Archipelagic_Baseline_Law.shtml
http://www1.american.edu/TED/spratly.htm
http://www.pinoypress.net/2009/02/22/arroyos-new-baseline-is-a-sellout-to-china-cpp/
Friday, June 04, 2010
TERRITORY
Territory is the fixed portion of the surface of the earth inhabited by the people of the State. It is fixed because there are groups that may seem to appear to have all the elements of the state but actually they are not. Examples of these are freebooters sailing the seas, nomadic tribes or even patriotic revolutionaries. They exist independent of external control, have governments of their own. One thing though, their territories are not definite. They have ephemeral existence, thus, they cannot be considered as states.
Territory is one of the fundamental attributes of a state because the exercise of sovereignty is established upon it. Where can the state exercise its authority or demand duties if it lacked territory?
Territory has three components. They are the land mass otherwise known as terrestrial domain, the inland and external waters, which make up the maritime and fluvial domain, and the air space above the land and waters, which is called the aerial domain.
There is also no requirement as to the size of the territory although it must be neither too big as to be difficult to administer and defend nor too small as to be unable to provide for the needs of the population. Thus a state may cover a vast expanse of continent like of Russia and China or it may only occupy only a few square miles like the Vatican City.
Size is of no legal significance but when it comes to practical politics and international relations, it is obviously material. An independent community occupying only a few square miles of territory is of very little importance in the game of world politics. (Sinco, 1962)
Territory is one of the fundamental attributes of a state because the exercise of sovereignty is established upon it. Where can the state exercise its authority or demand duties if it lacked territory?
Territory has three components. They are the land mass otherwise known as terrestrial domain, the inland and external waters, which make up the maritime and fluvial domain, and the air space above the land and waters, which is called the aerial domain.
There is also no requirement as to the size of the territory although it must be neither too big as to be difficult to administer and defend nor too small as to be unable to provide for the needs of the population. Thus a state may cover a vast expanse of continent like of Russia and China or it may only occupy only a few square miles like the Vatican City.
Size is of no legal significance but when it comes to practical politics and international relations, it is obviously material. An independent community occupying only a few square miles of territory is of very little importance in the game of world politics. (Sinco, 1962)
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