Chap 7 Territory: Land, Air, Outerspace

Territory in IL
• Territory as an element of a State means an area over w/c a state has effective control.
• Las Palmas Case:
◦ control over territory is of the essence of a state
◦ exact boundaries might be uncertain, but there should be a definite core over w/c
sovereignty is exercised
◦ Acquisition of territory more precisely means acquisition of sovereignty over territory
◦ Judge Huber: “sovereignty over a portion in the territory of any particular state”

• Territory includes land, maritime areas, airspace and outerspace

Modes of acquisition of sovereignty over territory

• Discovery and Occupation
◦ occupation is the acquisition of terra nullius, that is territory w/c prior to occupation
belonged to no state or w/c may have been abandoned by a prior occupant
◦ no abandonment when the occupant leaves the territory w/ the intention of not returning
• Western Sahara Case:
◦ question was whether WS inhabited as it as organized by tribes, was terra nullius
◦ in this case of such territories the acquisition of sovereignty was not generally considered as
effected unilaterally thru “occupation” of terra nullius by original title but thru agreements
concluded w/ local rulers
◦ “occupation” was used in a non-technical sense denoting simply acquisition of sovereignty;
but that did not signify that the acquisition of sov thru such agreements w/ authorities of the
country was regarded as an “occupation” of a
“terra nullius” in the proper sense of these terms
◦ the colonization of WS was inhabited by peoples w/c 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

Island of Palmas
• Palmas (Miangas) is an island about 2 miles long by ¾ of a mile wide w/c at the time of this
case had a population of about 750 and was of little strategic or economic value
• It sits about halfway bet the islands of Mindanao in the Ph and Nanusa in the Netherlands Indies
• It is however, w/in the boundaries of the Ph as defined by Spain and thus ceded to the US in
1898
• 1906, an American gen Leonard Wood visited Palmas and discovered that the Netherlands also
claimed sovereignty over the island
• Jan 23, 1925 – agreement bet US and Netherlands was signed to submit the dispute to binding
arbitration
• Max Huber, Swiss jurist was selected arbitrator acting for the Permanent court of Arbitration
• Huber was charged to determine “whether the Island of Palmas” (Miangas) in its entirety forms
part of territory belonging to the US or Netherlands
• Huber, Arbitrator:
◦ US as successor of Spain over PH – bases its title in the 1st place on discovery
◦ sov is acquired by treaty of Munster of 1648 to w/c Spain and Netherlands are themselves
are Contracting parties
◦ Treaty of Dec 10, 1898, Spain ceded the Ph to the US – American view – unnecessary to
establish facts showing the actual display of sov precisely over the island of palmas
(miangas)
◦ US govt maintains Palmas as part of Ph
◦ Title of acquisition of territorial sov in present day IL 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
◦ 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 sov (peaceful in relation to other states) is as good as a title.
◦ Territorial sovereignty- involves the exclusive right to display the activities of a state
▪ this right has as corollary a duty: the obligation to protect w/in the territory, the rights of
other states, in particular their right to integrity and inviolability in peace and in war,
together w/ the rights w/c each state may claim for its nationals in foreign territory
▪ The title alleged by US as constituting the immediate foundation of its claim is that of
cession, brought about by the treaty of paris, w/c cession transferred all rights of sov w/c
Spain may have possessed in the region indicated in Art III of said Treaty and therefore
also those concerning the Island of Palmas (Miangas)
▪ it is evident that Spain could not transfer more rights than she herself possessed
▪ the question whether the silence of a 3rd power, in regard to a treaty notified to it can
exercise any influence on the rights of this Power or those of the powers signatories of
the treaty – may depend on the nature of such rights
▪ Netherlands have succeeded in establishing the ff facts:
• Palmas is identical w/ an island designated by this or a similar name, w/c has
formed, at least since 1700, successively a part of 2 of the native States of the Island
of Sangi (Talautse Isles)
• The native States were from 1677 onwards connected w/ the East India Company,
and thereby w/ the Netherlands, by contracts of suzzerainty, w/ conferred upon the
suzzerain such powers as would “justify his considering the vassal state as a part of
his territory”
• act characteristic of state authority exercised wither by the vassal state or by the
suzerain power in regard precisely to the island of palmas have been established as
occurring at diff epochs bet 1700 and 1898 as well as in the period bet 1898 and
1906
• acts of direct and indirect display of Netherlands sov at Palmas esp in the 18th and
early 19th cent are not numerous and there are considerable gaps in the evidence of
continuous display – w/c suffice
• the conditions of acquisition of sov by Netherlands are fulfilled
• the title of discovery, if it had not already been disposed of y the treaties of Munster
and Urecht would under the most favorable and most extensive interpretation, exist
only as inchoate title – w/c cant prevail over a definite title founded on contiuous
and peaceful display of sov
• title of contiguity, understood as a basis of territorial sov has no foundation in IL
• thus Palmas – forms its entirety a part of Netherlands territory
 • Ezffective control may depend on the nature of the case – eg whether the territory is inhabited
or not and how fierce the occupants are
• where there are 2 or more claimants to a territory, effective control is also relative to the
strength of claims

Eastern Greenland Case

• ICJ in favor or Denmark
• claim to a sov may be based not upon some particular act or title such as a treaty of cession but
merely upon continued display of authority
• involves 2 elements each of w/c must be shown to exist: the intention and will to act as
sovereign, and some actual exercise or display of such authority
• extent to w/c the sov is also claimed by some other power
• most cases – decides w/c is 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 sov over Greenland
• up till 1921, no power disputed the Danish claim to sov

Chap 8 Territory: Law of the Sea

• importance of sea:
◦ medium of communication
◦ contain vast natural resources
• Grotius: high seas as res communis – accessible to allegation
• doctrine is recognized as permissible the delineation of a maritime belt by littoral states as an
indivisible part of its domain – belt is the territorial sea
• Convention on the law of the sea of 1982 (LOS) – prevailing law on maritime domain
• Art 2 1982 LOS – basic statement of the extent of a state's sov over waters
◦ art 2 Legal status of the TS, of the air space over the TS and of its bed and subsoil
1. the sovereignty of a coastal state extends, beyond its land territory and internal waters
and in the case of an archipelagic state, its archipelagic waters, to an adjacent belt of sea,
described as TS
2. this sov extends to the airspace over the TS as well as to its bed and subsoil
3. the sov over the TS is exercised subj to this convention and to other rules of IL

Territorial Sea
• belt of sea outwards from the baseline and up to 12 nautical miles beyond
• width of this territorial belt of water has been the subj of much disagreement
• orig rule: “cannon shot” rule – width of water was measured in terms of the range of shore-
based artillery
• later became 3 mile rule – now discarded in favor of the 12 mile rule in Art 3 1982 LOS
• however 12 mile rule result in overlapping, the rule now established is that the dividing line is a
median line equidistant from the opposite baselines
• but equidistance rule does not apply where historic title or other special cir require a diff
measurement
• Art 15, 1982 LOS
◦ Baseline: normal or straight
 ◦ Baseline – low water line along the coast as marked on large scale charts officially
recognized by the coastal state (sec 5, 182 LOS)
◦ width of TS is measured from the baseline
◦ 2 ways of drawing the baseline:
▪ normal – line is 1 drawn f the low water line along the caost as marked on large scale
charts officially recognized by coastal state. This line follows the curvantures of the
coast and therefore would normally not consist of straight lines
▪ no fixed norm for determining the “low water mark
▪ Anglo-Norwegian Fisheries Case – has suggested that “for the purpose of measuring
the breadth of the TS, it is the low water mark as opposed to the high-water mark, or the
mean bet the 2 tides, w/c generally been adopted in the practice of States
▪ criterion is most favorable to the coastal state and clearly shows tha character of TW as
appurtenant to the land territory
▪ Archipelagic states instead of drawing normal lines, have drawn straight baselines –
instead of ff the curvatures of the coast w/o appreciable departure from the general
shape of the coast
▪ RA 3046 and RA 5446 adopted straight baselines in the PH
• Art 7(1) of the Convention on the LOS: “in localities where the coastline is deeply intended and
cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of
straight baselines joining appropriate points may be employed in drawing the baseline from w/c
the breadth of the TS is measured.
• Art 47 CLOS allows the use of the straight baseline method for archipelagic states w/ certain
limitations *page 121

Sovereignty over TS
• sov of the coastal state over its TS and the airspace above it as well as the seabed under is the
same as its sov over its land territory (art 2 LOS)
• the seas is subj to the right of innocent passage by other states
• rule applies to ships and aircraft
• submarines moreover must surface
• Innocent passage is passage that is not prejudicial to the peace, good order or security of the
coastal state
• Art 19 (2) enumerates acts that are not considered innocent passage thus *page 123

• Coastal states have the unilateral right to verify the innocent character of passage, and it may
take the necessary steps to prevent passage that it determines to be not innocent
• Rule on Innocent Passage is also applicable to straits
• Corfu Channel Case: states in time of peace have the right to send their warships thru straits
used for Intl navigation bet 2 parts of the high seas w/o the prev authorization of a coastal state
provided that the passage is innocent
• unless otherwise prescribed in an intl convention, there is no right for a coastal state to prohibit
such passage through straits in time of peace – rule now found in Art 45 1982 Convention

Internal Waters
• are all waters (part of the sea, rivers, lakes, etc) landwards from the baseline of the territory
• sov over these waters is the same in extent as sov over land and it is not subj to the right of
innocent passage
 • Saudi Aramco v Aramco: accdg to IL – ports f every state must be open to foreign vessels and
can only be closed when vital interests of the state so requires
• Nicaragua v US: a coastal state may regulate access to its ports

Chap 9 Jurisdiction of States

• Jurisdiction – authority to affect legal interests
• Corresponding to the powers of govt, Jurisdiction can be:
◦ juris to prescribe norms of conduct (legislative juris)
◦ juris to enforce the norms prescribed (exclusive juris)
◦ juris to adjudicate (judicial juris)
• Scope of State's juris over a person, thing or event depends on the interest of the state in
affecting the subj in question
• where there are competing interests among various states, there may be a need to establish
priorities on the basis of the quality and quantity of the linkages the various states have

• IL limits itself to criminal rather than civil jurisdiction

• Civil juris is a subj for private IL or conflicts of law
◦ Writers have come up with 5 principles as follows:
1. territorial principle
2. nationality principle
3. protective principle
4. universality principle
5. passive personality principle
• 1st 3 are generally supported in customary law
• 4th finds application in special circumstances
• 5th does not enjoy wide acceptance
• juris may also be acquired thru treaty

The territoriality principle

• fundamental source of juris is sov over territory
• state has absolute, but not necessarily exclusive, power to prescribe, adjudicate and enforce
rules for conduct that occurs w/in its territory
• it is necessary that boundaries be determined
• third Restatement summarizes the rules on boundaries where states are not islands but parts of a
larger land mass thus”
1. the boundary separating the land areas of 2 states is determined by acts of the states expressing
their consent to its location
2. unless a consent to s different rule has been expressed
1. when the boundary bet 2 states is navigable river, its location is the middle of the channel of
navigation (Thalweg doctrine)
2. when the boundary bet 2 states is a non-navigable river or lake, its location is the middle of
the river or lake
• Las Palmas Case: to have jurisdiction, occupation is not enough; control must also be
established

Effects Doctrine
• an aspect of the territorial principles
 • a state also has juris over acts occurring outside its territory but having effects w/in it – Lotus
Case, an early case dealing w/ territorial jurisdiction
• ED itself consists of 2 principles
◦ subjective territorial principle – state has juris to prosecute and punish for crime
commenced w/in the state but completed or consummated abroad
◦ ojective tp – state has juris to prosecute and punish for crime commenced w/o the state but
completed or consummated w/in its territory

Lotus Case (France vs Turkey)

• Aug 2, 1926, just before midnight, a French mail steamer Lotus, on the way to Constantinople,
collided w/ the Turkish cutter Boz-Kourt on the high seas
• BK sank w/ the loss of 8 sailors, all turkish nationals
*page 134

Jurisdiction over foreign vessels in Ph Territory

• Regarding crimes committed on foreign vessels w/in Ph territory
• 2 fundamental rules:
◦ French rule – crimes committed aboard a foreign merchant vessel should not be prosecuted
in the courts of the country w/in whose territorial jurisdiction they were committed unless
their commission affects the peace and security of the territory
◦ English rule – based on territorial principle and followed in the US, accdg to w/c, crimes
perpetrated under such cir are in general triable in the courts of the country w/in whose
territory they were committed.
◦ Of the 2 rules, the last one obtains in this juris, because at present the theories and
jurisprudence prevailing in the US on the matter are authority in the Ph w/c is now territory
of the US

Trailsmelter Arbitration (US vs Canada)

*Page 138

The Nationality Principle

• every state has juris over its nationals even when those nationals are outside the State.

Blackmer v. US
*Page 140

Effective Nationality Link

• doctrine on effective nationality link is used to determine w/c of 2 states of w/c a person is a
national will be recognized as having the right to give diplomatic protection to the holder of
dual nationality
• doctrine is found in Nottebohm Case

Nottebohm Case (Liechtenstein v. Guatemala)

*Page 142

• As to corporations, a state has juris over organized under its laws

• many state assert juris over corporations whose principal place of business or registered office
 is located in their territories
• States have also sought to regulate corporations organized or having their principal place of
business abroad when these corporations are owned or controlled by nationals
• For maritime vessels – a state has juris over vessels flying its flag
• each state determines requirements for registration
• but flags of convenience might be challenged on the ground of lack of sufficient link
• the same principle is generally applicable to aircraft and spacecraft

Stateless persons
• those who do not have a nationality
• either de jure or de facto stateless
• de jure stateless persons are those who have lost their nationality, if they had one, and have not
acquired a new one
• de facto stateless persons are those who have a nationality but to whom protection is denied by
their state when out of the state – ex refugees
• since they do not enjoy protection by any state, how are they protected against violations of
their human rights such as by deportation to parts unknown? - answered by ff cases

Mejoff v Director of Persons

*page 151

The Protective Principle

• a state may exercise juris over conduct outside its territory that threatens its security, as long as
that conduct is generally recognized as criminal by states in the intl community
• this conditional clause excludes acts committed in exercise of the liberty guaranteed an alien by
the law of the place where the act was committed
• ex. plots to overthrow the govt, forging its currency, and plot to break its immigration
regulations
• Lord Haw Haw: an American Citizen who broadcast messages from Germany seeking to
persuade the Allies to surrender
◦ until 1940, he held a British passport
◦ after the war he was convicted of high treason in the UK
◦ Lord Jowwit of the House of Lords: “no principle of comity demands that a state should
ignore the crime of treason committed against it outside its territory. On the Contrary, a
proper regard for its own security requires that all those who commit that crime, whether
they commit it within ot w/o the realm should be amendable to its laws”

• United States v. Yunis: limitations on the protective principle

◦ intl community has strictly construed the reach of the doctrine to those offenses posing a
direct, specific threat to national security
◦ more liberal interpretation of the protective principle when applied to terroristic activities
◦ given the increase in the number of terroristic threats against US nationals abroad, there can
be no doubt that the US has significant security and protective interests at stake.
◦ In this case, the hijackers never made any demands upon the US govt nor directly threatened
its security
◦ given the regional focus of the hijacking, a court would have to adopt an expansive view of
the principle to assert jurisdiction over Yunis
 ◦ since jurisdiction is available under the universality and passive personality principle, there
is no reason to reach out and rely on the protective principle

The Universality Principle

• recognizes that certain activities, universally dangerous to states and their subjects, require
authority in all community members to punish such acts wherever they may occur, even absent
a link bet the state and the parties or the acts in question
• principle started with piracy – in IL means any illegal act of violence or depredation committed
for private ends on the high seas or outside the territorial control of any state
• now the principle covers not just piracy but also genocide , crimes against humanity , war
crimes, aircraft piracy and terrorism

• Statute of the new Intl Criminal Court defines crimes thus:

*page 157

• Article 8 enumerates in detail the war crimes under the Geneva Convention
• the ff are a number of cases illustrative of the univ principle

Filartiga v. Pena-Irala
*page 160