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B.

Principle of Territorial Sovereignty and Abuse of Rights


The basic dictum that governs the existence of the states should clearly
emphasize the idea involving cooperation, mutual respect and peaceful
co-existence. States, among each other, must exercise the respect and
cooperation among its neighbors so as to avoid unnecessary conflict and
should uphold the concept of territorial integrity and sovereignty. By
virtue of this principle that avoidance of potential skirmishes and conflict
shall be prevented and mitigated.
Hence, international law and international customary law recognizes the
principle governing such mutual cooperation and respect and peaceful
cooperation. It is imperative that indeed the principle of territorial
sovereignty must be uphold all the time, as long as it does not hamper the
territorial sovereignty and integrity of another State. The territorial
sovereignty of one state to some extent must be flexible when it comes to
the international obligations and must be recognizable of its limitations
and distinction when confronted with international obligation and
cooperation.
It must be noted that states cannot operate in isolation with its
neighboring states hence, it is specifically stated in that state, in spite of
its territorial supremacy, is not allowed to alter the natural conditions of
its own territory to the disadvantage of the natural conditions of the
territory of a neighboring State (Oppenheim, 1912). i It is explicitly stated
in this context that states must operate in the context cooperation rather
than in isolation even on the question of its territorial integrity and
sovereignty.
The principle of so called good neighborliness and sic utere tuo ut
alienum non laedas (you should use your property in such a way as not to
cause injury to your neighbors)ii must be invoked all the time especially in
dealing transboundary issues and conflict resolution as well mutual
cooperation context.
Between the interest of the Manatus and Senegalensis in dealing with the
conflict between marine seismic survey and life of manatees and marine
mammals, such principle must be recognized and uphold as well. It is well
stated in this principle that Seneganlensis in its adherence to economic
need for exploration of potential minerals it its territorial waters must in
accordance with the rights and sovereignty of its neighboring state of
Manatus which has interest on the protection and welfare of its marine
environment which is adjacent to the EEZ of the Senegalensis. Hence,
certain actions of Senegalensis must not be invoked by mere territorial
sovereignty question but rather must be done in accordance with the
principle of good neighborliness and sic utere tuo ut alienum non laedas.
This principle has been a guiding principle in dealing with jurisprudence
already decided about environmental impact of the state activity with the
other state. Take the case of Island of Palmas Case (United States v. The

Netherlands, award in 1928)iii and Trail Smelter Case (United States v.


Canada, awards in 1938 and 1941)iv which were a classic example of how
the court decided on the cases that involve conflict of territorial
sovereignty and state obligations with its neighboring states. It was clearly
stipulated in this cases that states have the right to its territorial integrity
and sovereignty but should be limited when rights and obligations with
the neighboring states are being hampered.

C. Violations Committed By Senegalensis by Principle of Territorial


Sovereignty and Abuse of Rights
Clearly stated in the binding agreement of the UNCLOS, several
provisions of which was violated by the Senegalensis. The following
are stated below:
1. Article 194 of UNCLOS clearly stipulated the idea that,
States, shall take all measures necessary to ensure that activities
under their jurisdiction or control are so conducted as not to cause
damage by pollution to other States and their environment, and
that pollution arising from incidents or activities under their
jurisdiction or control does not spread beyond the areas where they
exercise sovereign rights in accordance with this Convention.
The statement above is an indication that indeed states must
cooperate with each other while recognizing and respecting the
territorial integrity and sovereignty of other states as long as one
activity does not hamper the rights of the other to have a healthy
environment to live in.
2. Article 123 of the UNCLOS on the other hand stipulates that:
An increased duty to co-operate, which is incumbent on States
bordering a semi-enclosed sea, both in exercising their rights and in
performing their duties under the UNCLOS. It stated the four main
areas of activity in which States are to cooperate which includes the
following:
(a) Co-ordinate the management, conservation, exploration and
exploitation of the living resources of the sea; and
(b) Co-ordinate the implementation of their rights and duties
with respect to the protection and preservation of the marine
environment.

The statement above is congruence to the idea that territorial


integrity and sovereignty must be deal with according to the concept of
good neighborliness and sic utere tuo ut alienum non laedas.

3. Article 122 on the other hand, outlines the very definition of semienclosed seas which states that:
[] a gulf, basin or sea surrounded by two or more States and
connected to another sea or the ocean by a narrow outlet or
consisting entirely or primarily of the territorial seas and
exclusive economic zones of two or more coastal States.

Here the idea presented the geographical set up of Manatus and


Senegalensis which are adjacent to one another. Hence the
likelihood of transboundary effects of one activity have
significant, if not, impact to the other state.

4. Article 197 tackled principle of cooperation on a global or regional


basis. v Basically the idea of this article centered on the
responsibility and duty of cooperation among states regardless if it
qualifies as semi-enclosed seas. The article specifically stated as:
States shall cooperate on a global basis and, as appropriate, on a
regional basis, directly or through competent international
organizations, in formulating and elaborating international rules,
standards and recommended practices and procedures consistent
with this Convention, for the protection and preservation of the
marine environment, taking into account characteristic regional
features.

5. Article 194, of UNCLOS is another provision that need to be


recognized when it comes to territorial sovereignty of states in
relation to cooperation. The article stated that:
States shall take all measures necessary to ensure that activities
under their jurisdiction or control are so conducted as not to cause
damage by pollution to other States and their environment, and
that pollution arising from incidents or activities under their
jurisdiction or control does not spread beyond the areas where they
exercise sovereign rights in accordance with this Convention.

This is a classic example of the UNCLOS provision that the


dictum of sic utere tuo ut alienum non laedas is being applied. The
provision is clear when it says that the activity of one state must
always consider the effect of that activity to the neighboring state.

Limitations to the exercise of the territorial sovereignty is being


uphold when the state activity already hampers and endangers the
sovereignty of the neighboring state.
6.

Another, the Article 206 of UNCLOS supported the statement


above. It provided the following idea that:
When States have reasonable grounds for believing that planned
activities under their jurisdiction or control may cause substantial
pollution of or significant and harmful changes to the marine
environment, they shall, as far as practicable, assess the potential
effects of such activities on the marine environment and shall
communicate reports of the results of such assessments.

The statement above is in congruence with the idea of sic utere


tuo ut alienum non laedas where the states territorial integrity
must also consider the rights and obligations towards the
neighboring states.

By these provisions, the Senegalensis has no right to assert its


territorial integrity and sovereignty when it comes to its right to
exploration using marine seismic survey. It is imperative that the
Senegalensis must desist to the activities that may hamper
transboundary relationship with Manatus as long as proper
cooperation is exhaustively considered. Such strong denial for the
implementation of EIA is an action taken as violation of the
provisions stated above by the Senegalensis.

i Oppenheim on International Law (1912: 24344) Chapter Eight p.220


ii Mendis, C., 2006. Sovereignty vs. trans-boundary environmental harm: The evolving
International law obligations and the Sethusamuduram Ship Channel Project , Sri lanka:
United Nation and Nippon Foundation .
iii Island of Palmas Case, 2 RIAA (1949), pp.82990. See also Lagoni (1981: 22324).
iv Text as in Harris (1991: pp.245,224.
v Mendis, C., 2006. Sovereignty vs. trans-boundary environmental harm: The evolving
International law obligations and the Sethusamuduram Ship Channel Project , Sri lanka:
United Nation and Nippon Foundation.