Lecture 04 Territory in International Law

7/30/2019 Lecture 04 Territory in International Law

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Territory in

International Law

Law 111 Public International Law

Atty. GILBERT R. HUFANAProfessor


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Territory

the fixed and permanent portion on theearths surface inhabited by the people of

the state and over which it has supremeauthority

consists of the portion of the surface of the

globe on which that State settles and overwhich it has supreme authority

an exercise of sovereignty, covering notonly land, but also the atmosphere as well


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Characteristics

Permanent

Definite/Indicated with Precision

Generally, the territorys limits define theStates jurisdiction

Big enough to sustain the population

Not so extensive as to be difficult to:Administer; and

Defend from external aggression


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Modes of Acquisition of Territory

By Original Title

Discovery and Occupation

Accretion By Derivative Title

Prescription

Cession Conquest/Subjugation


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Modes of Acquisition of Territory

Other Modes

Dereliction/Abandonment

Erosion Revolution

Natural Causes


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An original mode of acquisition of territorybelonging to no oneterra nullius

land to be acquired must be terra nullius


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2 Requisites: Doctrine of Effective Occupation

Discovery/Possession

Mere discovery gives only an Inchoate Right ofDiscovery

Once the discovering state begins exercisingsovereign rights over the territory, the inchoate rightripens and is perfected into a full title

Effective Occupation

Does not necessarily require continuous display ofauthority in every part of the territory claimed


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Prescription

acquisition of territory by an averseholding continued through a long term of

years derivative mode of acquisition by which

territory belonging to 1 State is transferred

to the sovereignty of another State byreason of the adverse and uninterruptedpossession thereof by the latter for asufficiently long period of time


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Prescription

2 REQUISITES

continuous and undisturbed possession

lapse of a period of time No rule as to length of time required

Question of fact

Q: What is the source of this right? A:Roman principle of usucapio (long

continued use of real property ripened into

ownership)


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Cession

a derivative mode of acquisition by whichterritory belonging to 1 State is transferred to thesovereignty of another State in accordance with

an agreement between them

a bilateral agreement whereby one Statetransfers sovereignty over a definite portion of

territory to another State E.g. Treaty of cession (maybe an outcome of

peaceful negotiations [voluntary] or the result ofwar[forced])


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Conquest

derivative mode of acquisition whereby theterritory of 1 State is conquered in the courseof war and thereafter annexed to and placedunder the sovereignty of the conquering State

the taking possession of hostile territorythrough military force in time of war and by

which the victorious belligerent compels theenemy to surrender sovereignty of thatterritory thus occupied


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Conquest

acquisition of territory by force of arms

however, conquest alone merely gives an

inchoate right; acquisition must be completedby formal act of annexation

no longer regarded as lawful

UN Charter prohibits resort to threat or use offorce against a States territorial integrity orpolitical independence


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Military Belligerent Occupation

Not equivalent to conquest

Act whereby a military commander in the

course of war gains effective possessionof an enemy territory

By itself, does not effect an acquisition of

territory


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Accretion

the increase in the land area of a Statecaused by the operation of the forces of

nature, or artificially, through human labor Accessio cedat principali (accessory

follows the principal) is the rule which, in

general, governs all the forms of accretion. Examples:

Reclamation projects in Manila Bay

Polders of the Netherlands


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What comprises a territory?

Territorial Domain (Land mass)

Internal Waters

Maritime and Fluvial Domain Aerial Domain


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1. TERRITORIAL DOMAIN

The landmass where the people live


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The Philippine Territory(1987 Constitution)

Article I. National Territory 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 othersubmarine 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.


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The Philippine TerritorialDomain

The Philippine Archipelago is considered as aSingle Territorial Entity

Basis:

1. Treaty of Paris - Between Spain and the U.S.,signed in Paris on December 10, 1898

2. Treaty Between Spain and the U.S. for theCession of Outlying Islands of the Philippines,signed in Washington on November 7, 1900

3. Convention Between the U.S. and Great BritainDelimiting the Philippine Archipelago and the Stateof Borneo, signed in Washington on January 2,

1930


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Treaty of Paris

transferred Philippine sovereignty from Spain tothe U.S. upon payment of twenty million dollars($20,000,000) within three months after treaty

ratification

The boundaries of the Philippine archipelagodefined in Article III of the Treaty of Paris of

1898did not inc lude

two small islands: Sibutuat the extreme southwest of the Sulu grouptoward Borneo and Kagayan de Sulu, lyingnorthwest of Jolo and of some strategic value


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The Cession Treaty of 1900

Spain relinquishes to the U.S. all title and claim

of title, which she may have had at the time of

the conclusion of the Treaty of Paris, to any and

all islands belonging to the PhilippineArchipelago, lying outside the lines described in

Article III of that Treaty and particularly to the

islands of Cagayan, Sulu and Sibutu and theirdependencies, and agrees that all such islands

shall be comprehended in the cession of the

Archipelago as fully as if they had been included

within those lines.


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The Boundaries Treaty of 1930

clarifies those islands in the region belonging toU.S. and those to the State of North Borneo anddelimits the boundary between the Philippine

Archipelago (under U.S. sovereignty) and theState of North Borneo (under British protection)

solely focused on the status of the Turtle Islands

and the Mangsee Islands sovereignty over these islands was transferred

to the U.S.


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The

PhilippineTerritorialDomain


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The Philippine TerritorialDomain

Turtle

Islands

Cagayan

de Sulu

Sibutu

Mangsee

Islands


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Territories claimed by thePhilippines

Spratlys Islands

Sabah (North Borneo)

Scarborough Shoal


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The Spratlys

a disputed group of more than 750 reefs, islets,atolls, cays, and islands in the South China Sea

States staking claims to various islands are:Brunei, China (People's Republic of China),Malaysia, the Philippines, Taiwan (Republic ofChina), and Vietnam

the Spratly area holds significant reserves of oiland natural gas, it is a productive area for worldfishing and commercial shipping, and coastalcountries would get an extended continental

shelf


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Where is Spratlys?


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The Philippine Claim overSpratlys

The Philippines base their claims of sovereigntyover the Spratlys on the issues ofRes nulliusand geography

no effective sovereignty over the islands until the1930s when France and then Japan acquired theislands

When Japan renounced their sovereignty over the

islands according to the San Francisco Treaty, therewas a relinquishment of the right to the islandswithout any special beneficiary. Therefore, argue thePhilippines, the islands became Res nullius and

available for annexation


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In 1956, a private Filipino citizen, Tomas Cloma,unilaterally declared a state on 53 features in theSouth China Sea, calling it "Freedomland

On June 11, 1978, President Ferdinand Marcosof the Philippines issued Presidential decree No.1596, declaring the Spratly Islands (referred to

therein as the Kalayaan Island Group) asPhilippine territory.


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On the basis of geography

Kalayaan is distinct from other island groupsin the South China Sea, because of the sizeof the biggest island in the Kalayaan group

all the islands claimed by the Philippines liewithin its 200-mile Exclusive Economic Zone

according to the 1982 United NationsConvention on the Law of the Sea (UNCLOS)


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Current State of Spratlys


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The Sabah (North Borneo)Dispute

the territorial dispute between Malaysia and thePhilippines over much of the eastern part ofSabah

The Philippines, presenting itself as thesuccessor state of the Sultanate of Sulu, retainsa "dormant claim" on Sabah on the basis that

the territory was only leased to the British NorthBorneo Company in 1878, with the sovereigntyof the Sultanate (and subsequently theRepublic) over the territory never having been

relinquished.


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The Sultanate of Sulu was granted the north-eastern part of the territory as a prize for helpingthe Sultan of Brunei against his enemies and

from then on that part of Borneo was recognizedas part of the Sultan of Sulu's sovereignty.

In 1878, the Sultanate leased such territory to

the British North Borneo Company The 1878 cession/rental payment was continued

until the independence and formation of theMalaysian federation in 1963


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As of 2004, the Malaysian Embassy to thePhilippines had been paying cession/rentalmoney amounting to US$1,500 per year to the

heirs of the Sultanate of Sulu The Sultan of Sulu relinquished the sovereign

rights over all his possessions in favor of Spain,

based on Bases of Peace and Capitulationsigned by Sultan of Sulu and Spain in Jolo on 22July 1878


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In 1885, Spain relinquished all of its claim toBorneo to the United Kingdom of Great Britainand Ireland in the Madrid Protocol of 1885

In spite of that, in 1906 and 1920 the US, whichby then colonized the Philippines, formallyreminded the UK that Sabah belonged not to

them but to the Sultanate of Sulu.

America posited the claim on the premise that Spainnever had acquired sovereignty over North Borneo,and thus did not have the right to transfer claims ofsovereignty over North Borneo to UK in the MadridProtocol of 1885


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On 12 September 1962, the territory of NorthBorneo, and the full sovereignty, title anddominion over it were ceded by then reigning

Sultan of Sulu, Muhammad Esmail E. Kiram I, tothe Philippines.

The cession effectively gave the Philippinegovernment the full authority to pursue their claim in

international courts.

To date, Malaysia continues to consistentlyreject Philippine calls to resolve the matter of

Sabah's jurisdiction to the International Court ofJustice.


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The 2013 Standoff

On February 11, 2013, a group of approximately100200 individuals, some of them armed,arrived by boat in Lahad Datu, Sabah from

Simunul island, Tawi-Tawi of southernPhilippines.

They were sent by Jamalul Kiram III, one of the

claimants to the throne of the Sultanate of Sulu. Their objective was to assert their unresolved

territorial claim to North Borneo.


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Scarborough Shoal

Other names: ScarboroughReef, HuangyanIsland, BajodeMasinloc or PanatagShoal

a group of islands, atolls, and reefs than a shoal,

is located in the South China Sea.

The nearest landmass is Palauig town,Zambales province, Luzon Island, at 221

kilometers, about 123 miles west of Subic Bay.


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Scarborough Shoal

The Scarborough Shoal is not includedwithin the territorial lines defined in the

Treaty of Paris (1898),The CessionTreaty(1900), The 1930 Boundary Treaty,1935 Constitution of the Philippines,

Republic Act No. 3046 "Act to Define the

Baselines of the Territorial Sea of thePhilippines"(1961), or the 1987Constitution of the Philippines.


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Scarborough Shoal

ScarboroughShoal

Phili i Cl i h


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Philippine Claim on theScarborough Shoal

the Philippine DFA has asserted that the countryexercised both effective occupation and effective

jurisdiction over Bajo de Masinloc since its

independence erected flags in some islands and a lighthouse which

it reported to the International Maritime Organization

It also asserts that the Philippine and US Naval

Forces have used it as impact range and that itsDENR has conducted scientific, topographic andmarine studies in the shoal, while Filipino fishermenregularly use it as fishing ground and have always

considered it their own

Phili i Cl i th


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The DFA also claims that the name Bajo deMasinlocitself identifies the shoal as a particularpolitical subdivision of the Philippine Province of

Zambales, known as Masinloc. It also asserts that there is no indication that the

international community has acquiesced toChina's historical claim, and that the activity offishing of private Chinese individuals, claimed tobe a traditional exercise among these waters,does not constitute a sovereign act of the

Chinese State.

Phili i Cl i th


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The Philippine government argues that since thelegal basis of its claim is based on theinternational law on acquisition of sovereignty,

the EEZ claim on the waters aroundScarborough is different from the sovereigntyexercised by the Philippines in the shoal.

The Philippine government has proposed takingthe dispute to the ITLOS as provided inUNCLOS, but the Chinese government hasrejected this, insisting on bilateral discussions.

Phili i Cl i th


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Several official Philippine maps published bySpain and United States in 18th and 20thcenturies show Scarborough Shoal as Philippine

territory. The 2012 Scarborough Stand-off between

PROC and RP has led the latter to seriouslyconsider upgrading its maritime patrol and arealreconnaissance capability by acquiring HamiltonClass Cutters from the U.S. and negotiating forpurchase of 12 fighter jets from South Korea for

its small squadron.


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2. INTERNAL WATERS

These are bodies of water within the landboundaries of a State, or are closely linked toits land domain, such that they are consideredas legally equivalent to national land

includes: rivers, lakes and land-locked

seas, canals, and polar regions.


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Rivers

National rivers Lie wholly within 1 States territorial domain from

source to mouth

Belongs exclusively to that State

Boundary Rivers

Separates 2 Different States

Belongs to both States: If river is navigable the boundary line is the

middle of the navigable channel thalweg

If the river is not navigable the boundary line is

the midchannel


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Rivers

Multinational rivers

Runs through several States

Forms part of the territory of the Statesthrough which it passes

EX.: Congo River, Mekong River

International rivers

navigable from the open sea, and whichseparate or pass through several Statesbetween their sources and mouths


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Lakes and Land-locked Seas

If entirely enclosed by territory of 1 state:Part of that States territory

If surrounded by territories of severalStates: Part of the surrounding States


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Canals

Artificially constructed waterways

GR: Belongs to the States territory

XPN: Important Inter-Oceanic Canalsgoverned by Special Regime

Example

(1) Suez Canal(2) Panama Canal


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Historic waters

Waters considered internal only becauseof existence of a historic title, otherwise,should not have that charater

EX.: Bay of Cancale in France


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3. MARITIME AND FLUVIAL DOMAIN

Zones of the Sea

Waters adjacent to the coasts of a State to aspecified limit

1.Territorial Sea

2.Contiguous Zone

3.Exclusive Economic Zone4.Continental Shelf


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Territorial Sea

comprises in the marginal belt adjacent to theland area or the coast and includes generally thebays, gulfs and straights which do not have the

character ofhistoric waters (waters that arelegally part of the internal waters of the State)

portion of the open sea adjacent to the States

shores, over which that State exercisesjurisdictional control

1982 Convention of the Law of the Sea providesthe maximum limit of 12 nautical miles from the

baseline.


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Territorial Sea

Basis necessity of self-defense

Effect territorial supremacy over the territorialsea, exclusive enjoyment of fishing rights and

other coastal rights

BUT: Subject to the RIGHT OF INNOCENTPASSAGE (a foreign State may exercise its right

of innocent passage) Q: When is passage innocent?

A: When it is not prejudicial to the peace, goodorder, or security of the coastal State


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Right of Innocent Passage

The right of continuous and expeditious

navigation of a foreign shop through a

States territorial sea for the purpose of

traversing that sea without entering the

internal waters or calling at a roadstead or

port facility outside the internal waters, or

proceeding to or from internal waters or acall at such roadstead or port facility

Extent and Limitations of Right


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Extent and Limitations of Rightof Innocent Passage

Extends to ALL ships merchant andwarships

Submarines must navigate on the surfaceand show their flag

Nuclear-powered ships, ships carrying

nuclear and dangerous substances mustcarry documents and observe specialsafety measures


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The Baseline Theory/Method

Normal Baseline Method

Territorial sea is drawn from the low-water mark.

Q: What is the low-water mark?

A: The line on the shore reached by the sea atlow tide. Otherwise known as the baseline.


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The Baseline Theory/Method

Straight Baseline Method

A straight line is drawn across the sea, from headlandto headland, or from island to island. That straight line

then becomes the baseline from which the territorialsea is measured.

Q: What happens to the waters inside the line?

A: Considered internal waters. However, the baseline

must not depart to any appreciable extent from thegeneral direction of the coast


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The

PhilippineBaseline(RA 9522)


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Contiguous Zone

zone adjacent to the territorial sea, over whichthe coastal State may exercise such control as is

necessary to: Prevent infringement of its customs, fiscal,

immigration or sanitary laws within its territory orterritorial sea;

Punish such infringement

extends to a maximum of 24 nautical miles fromthe baseline from which the territorial sea ismeasured.


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Exclusive Economic Zone (EEZ)

a maximum zone of 200 nautical miles from thebaseline from which the territorial sea is measured,over which, the coastal State exercises sovereign

rights over all the economic resources of the sea,sea-bed and subsoil

Rights of other States in the


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Rights of other States in theEEZ

Freedom of navigation and overflight

Freedom to lay submarine cables and

pipelines Freedom to engage in other internationally

lawful uses of the sea related to said

functions


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Continental Shelf

comprises the seabed and subsoil of thesubmarine areas that extend beyond theterritorial sea throughout the natural

prolongation of its land territory to the outeredge of the continental margin; or to a distanceof more than 200 nautical miles from thebaselines form which the breadth of the

territorial sea is measured where the outeredge of the continental shelf does not extendup to that distance

Rights of the Coastal State


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Rights of the Coastal State

sovereign rights for the purpose of exploring andexploiting its natural resources

rights are exclusive if the State does not

explore or exploit the continental shelf, no onemay do so without its express consent


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Archipelagic Doctrine

emphasizes the unity of land and waters bydefining an archipelago either as a group ofislands surrounded by waters or a body of waters

studded with islands it requires that baselines be drawn by connecting

the appropriate points of the outermost islands

to encircle the islands within the archipelago

waters on the landward side of the baselinesregardless of breadth or dimensions are merelyinternal waters

Archipelagic


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ArchipelagicDoctrine

an archipelago shall beregarded as a single unit,so that the waters around,between, and connectingthe islands of thearchipelago, irrespective oftheir breadth anddimensions, form part of theinternal waters of the state,subject to its exclusivesovereignty


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Rules Governing the Baselines

Such baselines should not depart radically fromthe general direction of the coast, or from thegeneral configuration of the archipelago

Within the baselines are included the main islandsan area with a maximum water area to land arearatio of 9:1

Length of baselines shall not exceed 1nauticalmiles

XPN: Up to 3% of the total number of baselines mayhave a maximum length of 125 nautical miles


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Effect of the Baselines

The waters inside the baselines areconsidered internal waters;

The territorial sea, etc. are measured fromsuch baselines;

Archipelagic State exercises sovereignrights over all the waters enclosed by thebaselines

Limitation Archipelagic


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Limitation ArchipelagicSealanes

Archipelagic State must designate sea andair route for the continuous andexpeditious passage of foreign ships andaircraft through or over its archipelagicwaters and adjacent territorial sea

Passage only for continuous, expeditious, and

unobstructed transit between 1 part of thehigh seas or an EEX to another part of thehigh seas or an EEZ


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The Philippine Archipelago

The Philippines adheres to theArchipelagic Doctrine Art. I, 1987Constitution:

The waters around, between, and

connecting the islands of the archipelago,regardless of their breadth and

dimensions, form part of the internalwaters of the Philippines.


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Republic Act No. 9522

Amended RA 3046 as amended by RA 5446

Defined the archipelagic baselines of thePhilippines

The Philippine archipelago comprises of 101baselines

Regimes of Islands:

The Kalayaan Island Group as constitutedunder Presidential Decree No. 1596; and

Bajo de Masinloc, also known as ScarboroughShoal


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Republic

Act No.9522

Scarborough

Shoal

Kalayaan

Island Group


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The regime of the High Seas

belongs to everyone and to no one both rescommones and res nullius

everyone may enjoy the following rights over the

high seas: Navigation, Fishing, Scientificresearch, Mining, Laying of submarine cables orpipelines; andother human activities in the opensea and the ocean floor

the freedoms extend to the air space above thehigh seas


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Doctrine of Hot Pursuit

The pursuit of a foreign vessel undertakenby the coastal State which has good

reason to believe that the ship has violatedthe laws and regulations of that State.


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Requisites of DHP

Be commenced when the ship is within thepursuing States:

Internal Waters;

Territorial Sea; or

Contiguous Zone

May be continued outside such waters if the

pursuit has not been interrupted Continuous and unabated


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Requisites of DHP

Ceases as soon as the foreign ship enters theterritorial sea of:

Its own State; or

That of a 3rd State Be undertaken by:

Warships; or

Military aircraft; or Other ships/aircraft cleared and identifiable as

being in the government service andauthorized to that effect


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Aerial Domain

the airspace above the territorial andmaritime domains of the State, to the limitsof the atmosphere

does not include the outer space


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Air Space

the air space above the States terrestrial and

maritime territory

Every State has complete and exclusive

sovereignty over the air space above its territory Convention on International Civil Aviation

Territory includes terrestrial and maritime

territory thus, includes air space above territorial sea

NO right of innocent passage!


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Air Space

the air space above the high seas is open to allaircraft, just as the high seas is accessible toships of all States

the State whose aerial space is violated can takemeasures to protect itself, but it does not mean thatStates have an unlimited right to attack the intrudingaircraft (intruding aircraft can be ordered either to

leave the States air space or to land)


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5 Air Freedoms

a. overflight without landing;

b. landing for non-traffic purposes;

c. put down traffic from state to airline;d. embark traffic destined for state of

aircraft; and

e. embark traffic or put down traffic to orfrom a third state

P i C i f 1919


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Paris Convention of 1919

Each nation has absolute sovereignty over theairspace overlying its territories and waters. Anation, therefore, has the right to deny entry and

regulate flights (both foreign and domestic) intoand through its airspace.

Aircraft of contracting states are to be treatedequally in the eyes of each nation's law.

P i C ti f 1919


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Paris Convention of 1919

Each nation should apply its airspace rulesequally to its own and foreign aircraft operatingwithin that airspace, and make rules such that its

sovereignty and security are respected whileaffording as much freedom of passage aspossible to its own and other signatories' aircraft.

Aircraft must be registered to a state, and theypossess the nationality of the state in which theyare registered.

The 1944 Chicago Convention


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The 1944 Chicago Conventionon International Civil Aviation

It provides that every State has complete andexclusive sovereignty over the airspace aboveits territory.

It states the principle that aircraft have thenationality of the State in which they areregistered (notably, many rules governingaircraft, provided in the Convention, have beencopied from the rules governing ships).



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It makes a distinction between scheduled andunscheduled air services. No scheduledinternational air service of one State may be

operated over or into the territory of anotherState, except with the special permission orother authorization of that State, and inaccordance with the terms of such permission or

authorization.



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Aircraft not engaged in scheduled internationalair services have the right to make flights into orin transit non-stop across the territory of another

State, and to make stops for non-traffic purposeswithout the necessity of obtaining priorpermission of that State, subject, however, to theright of the State flown over to require landing, or

to impose certain restrictions, such as routesand off-limit areas.



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The Chicago Conventions applies only to civilaircraft, not to State aircraft which are used inmilitary, customs and police services.

State aircraft have no right to fly over theterritory of another State or land thereon withoutauthorization by special agreement or otherwise,and in accordance with the terms thereof.

O t S (R C )


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Outer Space (Res Communes)

the space beyond the airspace surrounding theearth or beyond the national airspace, which iscompletely beyond the sovereignty of any State

the moon and the other celestial bodies formpart of the outer space (Moon Treaty of 1979)

thus, it is not subject to national appropriation

free for all exploration and use by all States andcannot be annexed by any State

governed by a regime similar to that of the highseas

O t S T t


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Outer Space Treaty

Outer Space is free for exploration and use byStates; cannot be annexed by any State

Its use and exploration must be carried out for

the benefit of all countries and in accordancewith international law

Celestial bodies shall be used exclusively forpeaceful purposes

Nuclear weapons and weapons of massdestruction shall not be placed in orbit aroundthe earth

The Boundary between the Air


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yspace and the Outer space

No accepted answer yet! There are differentopinions:

That it should be near the lowest altitude

(perigee) at which artificial earth satellites canremain in orbit without being destroyed by frictionwith the air around 190 km from earths surface

Theoretical limit of air flights is 90 km above the

earth Functional Approach: The legal regime governing

space activities are based, not on a boundaryline, but on the nature of the activities


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END OF LECTURE

Territory in International Law

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Lecture 04 Territory in International Law