LAND AND AIR REPORT SCRIPT

LAND

Modes of Acquisition

1.Discovery and Occupation

DISCOVERY
- Territories not belonging to any State, or terra nullius is placed under sovereignty of
the claiming State.
- The word DISCOVERY alone merely creates an inchoate right; it must be
followed within a reasonable time by effective occupation and administration.
- A state may acquire a territory by discovering a continent, an island, or land with
no inhabitants or occupied by uncivilized inhabitants, and thereafter, occupying it by
placing it under its political administration.

- It is an original mode of acquisition by which territory not belonging to any state, or

terra nullius, is placed under the sovereignty of the discovering state.

- The territory need not be uninhabited provided it can be established that the
natives are not sufficiently civilized and can be considered as possessing not rights
of sovereignty but only rights of habitation.

LANDS THAT CAN BE SUBJECTS OF DISCOVERY AND OCCUPATION:

Uninhabited lands
Lands inhabited by uncivilized persons
Lands discovered by a state but which it failed to occupy for unreasonable length of time
(Palmas Case)

Doctrine of Inchoate Title

- It means that since an effective occupation must usually be a gradual process it is

considered that some weight should be given to mere discovery, and it is regarded
therefore as giving an “inchoate title”, that is to say, a temporary right to exclude
other states until the State of the discoverer has had a reasonable time within which
to make an effective occupation, or a sort of option to occupy which other states
must respect while it lasts.

- Discovery will give the state inchoate title over the discovered land that will
prevent others from acquiring it for a reasonable period of time until the inchoate title
is transformed into a full title by administering it.

Hinterland Doctrine
 - Under the hinterland doctrine, the state that discovers and occupies the coast
shall also have an exclusive right to occupy the hinterland

- i.e. the inland region lying behind a port.

Island of Palmas Case (United States v. The Netherlands)

FACTS:
Both the United States (P) laid claim to the ownership of the Island of Palmas. While the
U.S. (P) maintained that it was part of the Philippines, the Netherlands (D) claimed it as their
own. The claim of the U.S. (P) was backed up by the fact that the islands had been ceded by
Spain by the Treaty of Paris in 1898, and as successor to the rights of Spain over the
Philippines, it based its claim of title in the first place on discovery. On the part of the
Netherlands (D), they claimed to have possessed and exercised rights of sovereignty over the
island from 1677 or earlier to the present.

CONTENTIONS:

U.S
- The immediate foundation of Americas 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).
- Evident that Spain could not transfer more rights than she herself possessed
- US also claims that the island was relatively closer to the shores of the Philippines than to
Indonesia (Netherlands East Indies), which means that it belonged to them(PH) in virtue of their
geographical situation

NETHERLANDS
- primary contention: is its continuous and peaceful display of territorial sovereignty (peaceful
in relation to other States) is as good as title
-have sufficiently proved that:
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 (Talautse Isles).
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 claims made by the Netherlands (D) were also based on the premise of the convention it
had with the princes and native chieftains of the islands. Hence, at the time of the Treaty of
Paris in 1898, Spain was found not to have dominion over the island.

ISSUE:
Whether or not a title which is inchoate prevail over a definite title found on the
continuous and peaceful display of sovereignty?

RULING:
An inchoate title cannot prevail over a definite title founded on continuous and peaceful
display of sovereignty. The inchoate right (Spain, US, PH) flowing from discovery was deemed
lost because administration was not undertaken within a reasonable time.
Although the original title by discovery could be traced to Spain, it never exercised
control over the territory and therefore they only had inchoate title over the islands, because
discovery alone could not suffice to prove sovereignty over the territory—it needs to be coupled
with control over it. Spain could not transfer more rights than she herself possessed. Its
inchoate right cannot prevail over a definite title founded on continuous and peaceful display of
sovereignty, upon which the Netherlands founded their claim. The Arbitrator rules in favor of the
Netherlands.
Relative effective control may depend upon the nature of the case. Where there are two
or more claimants to a territory, effective control is also relative to the strength of the claims.
In the argument of contiguity when US argued that Palmas was US’ territory because the
island was closer to the Philippines than to Indonesia which was then held by the Netherlands
East Indies.

The arbitrator said there was no positive international law which favored the US’
approach of terra firma, where the nearest continent or island of considerable size gives
title to the land in dispute. The arbitrator held that mere proximity was not an adequate
claim to land noted that if the international community followed the proposed United
States approach, it would lead to arbitrary results.

Netherlands' primary contention was that it held actual title because the Netherlands had
exercised authority on the island since 1677. The arbitrator noted that the US had failed to show
documentation proving Spanish sovereignty on the island except those documents that
specifically mentioned the island's discovery.

Additionally, there was no evidence that Palmas was a part of the judicial or
administrative organization of the Spanish government of the Philippines. However, the
Netherlands showed that the Dutch East India Company had negotiated treaties with the
local princes of the island since the 17th century and had exercised sovereignty,
including a requirement of Protestantism and the denial of other nationals on the island.
The arbitrator pointed out that if Spain had actually exercised authority, than there would
have been conflicts between the two countries but none are provided in the evidence.
In resolving island territorial disputes, the following 3 important rules must be followed:
1. Title based on contiguity has no standing in international law
2. Title by discovery is only an inchoate title
3. If another sovereign begins to exercise continuous and actual sovereignty and
the discoverer does not contest this claim, the claim by the sovereign that exercises
authority is greater than a title based on mere discovery

Kalayaan Islands (Manila Declaration of 1992)

Between 1947 to 1956, a Filipino explorer named Tomas Cloma, discovered the
Kalayaan Islands ( a 53-island group Part of the Spratly Islands, situated within the West
Philippine Sea). Subsequently, Cloma ceded his rights to the Philippine Government. By
virtue of Pres. Decree No. 1596 signed on June 11, 1978 by President Ferdinand Marcos,
the Philippines formally laid claim to the islands by virtue of occupation and exercise of
jurisdiction. The Municipality was established as part of the Province of Palawan. On May
20, 1980, the Philippines registered its claim with the United Nations Secretariat. The
Philippines’ claim to the islands is justified by reason of history, indispensable need, and
effective occupation and control. Thus, in accordance with international law, the Kalayaan
Group is subject to the sovereignty of the Philippines.

By virtue of the Manila Declaration of 1992, it was agreed that whatever conflicting
claims there may be over the islands shall be resolved in a peaceful manner, through
diplomatic negotiations.

What is Occupation?
- It involves not mere intent but must also be accompanied by acts tantamount to an exercise of
sovereignty over a previously unclaimed territory (Island of Palmas as example)
- It 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.

Principle of effective occupation

- Colonial powers could acquire rights over colonial lands only if they possessed them: if
they had treaties with local leaders, if they flew their flag there, and if they established an
administration in the territory with a police force to keep order. Also, the colonial power
could also make economic use of the colony.
- This principle became important not only as a basis to acquire territorial sovereignty, but
also for determining the limits of their respective overseas possessions, as effective
occupation served in some instances to settle disputes over the boundaries between
colonies.

Effective control
 - It has been described as an intentional display of power and authority over the territory, by
the exercise of jurisdiction and State functions, on a continuous and peaceful basis.
- It is relative and may depend on the nature of the case and 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)

Elements of effective control:

1. intention and will to act as sovereign
2. some actual exercise or display of such authority (Administration has to be for a
reasonable period of time)

Eastern Greenland Case, 1933 (Denmark v. Norway)

FACTS:
A suit was instituted before the Permanent Court of International Justice (PCIJ) by The
Royal Danish Government (Denmark) against the Royal Norwegian Government (Norway) over
the legal status of certain territories in Eastern Greenland. The cause of action for the dispute
arose when Norwegian Government on July 10th, 1931 proclaimed that it proceeded to occupy
certain territories of Eastern Greenland which as contented by Denmark are subject to the
sovereignty of the Crown of Denmark.

DENMARK’S CONTENTION:
The Danish Government contended that Norway had given certain undertakings
recognizing its sovereignty over Greenland to the effect:
● After termination of the Union between Denmark and Norway in 1814, the latter
undertook not to contend the Danish claim of sovereignty over Greenland and that Norway
acknowledged Danish sovereignty and consequently it cannot occupy of any part thereof.
● International Agreements: In many bilateral and multilateral agreements concluded
between Denmark and other countries including Norway, Greenland was described as part of
Denmark and has been excluded at the instance of the latter from operation of the
agreements. By ratifying such agreements, it is followed that Norway recognized the whole
of Greenland as part of Denmark.
● Ihlen Declaration: One of the bases for the Denmark’s claim was the statement made by
Foreign Minister of Norway, Nils Claus Ihlen in July, 1919 in which he declared verbally to
the Danish Minister that "the plans of the Royal Danish Government respecting Danish
sovereignty over the whole of Greenland would be met with no difficulties on the part of
Norway."

NORWAY’S CONTENTION:
● Ihlen’s declaration is a mere diplomatic assurance of the benevolent attitude of the
Norwegian Government in the event of subsequent negotiations concerning a definitive
settlement
 ● That a verbal declaration is not internationally binding, especially when it would involve the
renunciation of important national interests; that
● Ihlen could not bind Norway by such a statement, since international law attaches legal force
only to those acts of a foreign minister which fall within his constitutional competence

RULING:

The Permanent Court of International Justice by twelve votes to two adjudged that the
promulgation by the Norwegian Government on July 10, 1931 on the occupation over Greenland
and any steps in furtherance of the declaration would amount to violation of existing legal
situation and are accordingly unlawful and invalid. To ascertain the legal status of Eastern
Greenland, the Court relied on the following premises:

1. The continuous and peaceful exercise of sovereignty over Greenland resulted in the title
towards Denmark.
2. The Court made the Ihlen declaration binding thereby conferring the sovereignty to
Denmark.

Conclusion: A country is bound by the reply given on its behalf by its Minister of Foreign
Affairs.

2. Prescription
Prescription as a mode of acquiring sovereignty over a territory requires effective control.
Unlike occupation however the object of prescription is not terra nullius. Thus, the required length of
effective control is longer than that required by occupation.

It may be negated by a demonstrated lack of acquiescence by the prior occupant. (Bernas,

p.112)

Prescription requires long, continued, and adverse possession to vest acquisitive title in the
claimant. However, there is no rule yet, in international law, fixing the period of possession
necessary to transfer title. (Cruz, p.113)

WESTERN SAHARA, ADVISORY OPINION 1975 I.C.J. 12 (OCT. 16)

BACKGROUND:

Western Sahara was a colony of Spain during 1884 when Spain proclaimed a protectorate
over the Río de Oro, however, Spain was forced to withdraw from the territory with the pressure
coming from the United Nations, Morocco, and Mauritania.
The announcement of the withdrawal prompted Morocco and Mauritania to claim parts of the
Western Sahara as part of their territory based on historical grounds.
Thus, a letter was laid before the Court, addressed by the Secretary-General of the United Nations,
requesting the former to give an advisory opinion on the questions set out regarding the persistence
of a colonial situation in Western Sahara which jeopardizes the stability and harmony in the north-
west African region.
CASE:

The specific questions raised in the letter were:

'I. Was Western Sahara (Río de Oro and Sakiet El Hamra) at the time of colonization by
Spain a territory belonging to no one (terra nullius)?
If the answer to the first question is in the negative,

II. What were the legal ties between this territory and the Kingdom of Morocco and the
Mauritanian entity?';

COURT RULING IN THE FIRST INQUIRY

I. The expression "terra nullius" in connection with "occupation" is one of the accepted legal
methods of acquiring sovereignty over territory. "… it was a cardinal condition of a valid "occupation"
that the territory should be terra nullius—a territory belonging to no-one — at the time of the act
alleged to constitute the "occupation"

The State practice of the relevant period indicates that territories inhabited by tribes or
peoples having a social and political organization were not regarded as terrae nullius; acquisition in
this case stems from agreements concluded with local rulers.

In the present instance, the information furnished to the Court shows that at the time of
colonization Western Sahara was inhabited by peoples which were socially and politically organized
in tribes and under chiefs competent to represent them. It also shows that, in colonizing Western
Sahara, Spain did not proceed on the basis that it was establishing its sovereignty over terrae
nullius, instead, Spain proclaimed that the King was taking the Río de Oro under his protection on
the basis of agreements which had been entered into with the chiefs of the local tribes.
Hence, Western Sahara at the time of colonization of Spain is not terra nullius. The
Court's answer to Question I is, therefore, in the negative.
PARTIES’ CONTENTION ON THE SECOND INQUIRY

MOROCCO’s CLAIM

Morocco's claim to "legal ties" with Western Sahara at the time of colonization by Spain has
raised on the ground of an alleged immemorial possession of the territory. This immemorial
possession, it maintains, was based not on an isolated act of occupation but on the public display of
sovereignty, uninterrupted and uncontested, for centuries. In support of this claim Morocco refers to
a series of events stretching back to the Arab conquest of North Africa in the seventh century A.D.,
the evidence of which is, understandably, for the most part taken from historical works.

In the view of the Court, the decisive importance in determining its answer to Question II is
not indirect inferences drawn from events in past history but evidence directly relating to effective
display of authority in Western Sahara at the time of its colonization by Spain and in the period
immediately preceding that time.
 Morocco in this regard urged that Western Sahara has always been linked to the interior of
Morocco by common ethnological, cultural and religious ties.
MAURITANIAN’S CLAIM

Mauritania does not oppose Morocco's claim to have displayed its authority in some, more
northerly, areas of the territory. Mauritania does not, however, admit the allegiance of other tribes in
Western Sahara to the Sultan of Morocco, as it considers them to belong to the Mauritanian entity.
COURT FINAL RULING

II. It is clear that, when the General Assembly asks in Question II what were the legal ties
between the territory of Western Sahara and the Kingdom of Morocco and the Mauritanian entity, it
is referring to such legal ties as may affect the policy to be followed in the decolonization of Western
Sahara.

As such, the materials and information presented to the Court show the existence, at the
time of Spanish colonization, of legal ties of allegiance between the Sultan of Morocco and some of
the tribes living in the territory of Western Sahara. They equally show the existence of rights,
including some rights relating to the land, which constituted legal ties between the Mauritanian
entity, as understood by the Court, and the territory of Western Sahara.
However, the Court's conclusion is that the materials and information presented to it
do not establish any tie of territorial sovereignty between the territory of Western Sahara and
the Kingdom of Morocco or the Mauritanian entity that might affect the application of
resolution 1514 (XV) in the decolonization of Western Sahara and, in particular, of the
principle of self-determination through the free and genuine expression of the will of the
peoples of the Territory

ENDING:

Despite the decision of the Court, Morocco mobilized its citizens to occupy a portion of the
Western Sahara Territory thus successfully taking control over 2/3 of the territory.

3. Cession

WHAT IS CESSION?
Cession is an understanding under international law by which territory is transferred from one State
to another through the consent of both States. It is one of the modes by which States can lawfully
acquire territory and based on mutual consent.

In Ballentine's Law Dictionary it defines cession as "a surrender; a giving up; a relinquishment of jurisdiction by a
board in favor of another agency.

The cession may comprise a portion of the territory of the ceding State or the totality of its territory. In the latter case,
the ceding State disappears and merges into the acquiring State. To constitute a cession it must be intended that the
sovereignty will pass.

The only form in which a cession can occur is an agreement normally in the form of a treaty between the ceding and
the acquiring state; or between several states including the ceding and cessionary states. A lot of times cession is an
outcome of peaceable negotiation or war, and maybe without compensation although certain duties could be imposed
in the acquiring state.
Such cessions are agreed upon by the interested states for different motives and for different purposes, like a gift or
voluntary merger. An example is when Austria, during its war with Prussia and Italy in 1866, ceded Venice to France
as a gift. Later France ceded Venice to Italy

TWO KINDS OF CESSION

There are two modes of Cession. First is the voluntary cession by treaty which is further identified into two
modes: (1) treaty of sale and (2) the treaty of donation. Second mode of cession is the involuntary cession by treaty.

An example under the voluntary cession through a treaty of sale is the treaty of sale of Alaksa by Russia to
the U.S. on March 30, 1867. The United States reached an agreement to purchase Alaska from Russia for a price of
$7.2 million. The Treaty with Russia was negotiated and signed by Secretary of State William Seward and Russian
Minister to the United States Edouard de Stoeckl.

An example of voluntary cession through a treaty of donation is the donation of Sabah by Borneo to the
Sultan of Sulu. In the North Borneo dispute, also known as the Sabah dispute is the territorial dispute between
Malaysia and the Philippines over much of the eastern part of the state of Sabah. Sabah was previously known as
North Borneo prior to the formation of the Malaysian federation. The Philippines, presenting itself as the successor
state of the Sultanate of Sulu, retains a "dormant claim" on Eastern Sabah on the basis that the territory was only
leased to the British North Borneo Company in 1878, with the sovereignty of the Sultanate (and subsequently the
Republic) over the territory never having been relinquished. However, Malaysia considers this dispute as a "non-
issue" as it interprets the 1878 agreement as that of cession, and it deems that the residents of Sabah (including
Eastern Sabah) had exercised their right to self-determination when they joined to form the Malaysian federation in
1963.

Cession may also be involuntary, or forced, such as the treaty entered into by the U.S. and Spain after the
Spanish-American War, although the treaty was denominated one of sale, whereby Spain ceded the Philippines,
Puerto Rico, Marianas and Guam to the U.S. for $20M. It must 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.

4. Conquest

“Conquest” is the forceful taking over of a state or territory through the use of armed force. This
was one of the legitimate ways of acquiring land back in the old days, from the greatest exploits
of Attila the Hun and Alexander the Great to Columbus’ journey to the so-called “New World”
and World War II.

Back in the old days, for acquisition of property through conquest be recognized and
established, it was necessary that (1) the war first be ended, either by treaty or apparent
cessation or abandonment of resistance from the conquered state or territory. Furthermore, (2)
the conqueror must have had the intention to conquer and acquire the territory and not just
occupy it temporarily.

A prominent example of a recently recognized acquisition of territory through conquest is the

invasion of the Philippines by the Japanese back in World War II. At the same time, the
subsequent occupation of Nazi Germany by the U.S. armed forces was not recognized as an
acquisition of territory through conquest because the Americans had no intention of seizing
Germany at all.

Today, conquest is prohibited by international law. The “1970 Declaration of Principles of

International Law Concerning Friendly Relations and Cooperation among States” stated that
“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 legal.”

Although conquest has been prohibited by international law, states sometimes ignore this
principle in practice. In 1975, for example, Indonesia invaded and annexed the former
Portuguese colony of East Timor. Another example is the invasion and attempted annexation of
Kuwait by the Iraqi government led by Saddam Hussein. In response to the latter, the UN
security council reinforced the unacceptability of conquest and endorsed military force to
remove Iraqi troops from Kuwait.

In general, conquest has faded into the annals of history books and has become an insignificant
issue in international politics since territorial expansion is no longer a common ambition among
states.

The law that international courts apply when a long time has elapsed since the conclusion of a treaty, to take into
account changes that have taken place in international law since the treaty was formulated and changes in the
meaning of the expressions in the treaty. The existence of a right (e.g. to a territorial claim) should be based not only
on the law in effect at the time the right was created, but also on the international law as applied to the continued
existence of that right. The legitimacy of a title to territory must be renewed by the claimant state. The classic
application of intertemporal law to a dispute can be found in the Island of Palmas Arbitration (Netherlands v US)
(1928) 2 RIAA 829.

Intertemporal Law

The law that international courts apply when a long time has elapsed since the conclusion of a treaty, to take into
account changes that have taken place in international law since the treaty was formulated and changes in the
meaning of the expressions in the treaty. The existence of a right (e.g. to a territorial claim) should be based not only
on the law in effect at the time the right was created, but also on the international law as applied to the continued
existence of that right. The legitimacy of a title to territory must be renewed by the claimant state. The classic
application of intertemporal law to a dispute can be found in the Island of Palmas Arbitration (Netherlands v US)
(1928) 2 RIAA 829.

Stimson Doctrine

The Stimson Doctrine, named after Henry L. Stimson, United States Secretary of State during
the administration of Herbert Hoover, was a policy implemented after the forceful seizure of
Manchuria, in Northeastern China, by the Japanese following the Mukden incident. Behooved
by Hoover, Stimson made a sweeping declaration that the United States would not admit the
legality of any situation between the Imperial Japanese Government and the Government of the
Chinese Republic, and that it does not intend to recognize any treaty of agreement entered into
between the two governments. This was then adopted by the League of Nations in a resolution
declaring that it was “incumbent upon the members of the League of Nations not to recognize
any institution, treaty or agreement which may be brought about by means contrary to the
Covenant of the League of Nations or to the Pact of Paris.”

The Stimson Doctrine is an application of the principle of “ex injuria jus non oritur” which means
“illegal acts do not create law”

5. Accretion and Avulsion

Accretion and Avulsion can also lead to sovereignty over territory, this is sovereignty by
operation of nature.

ACCRETION AVULSION

Accretion is the process of growth or Avulsion is the sudden change and

enlargement of territory by gradual build up. dramatic shift of territory, it is the pushing
It is based on the principle of accessio back of the shoreline by sudden, violent
cedat principali (the accessory follows the action of the elements, perceptible while in
principal). progress.

It may be accomplished through both It is basically the loss of territory either:

natural or artificial processes such as:
1. The gradual and imperceptible
deposit of soil on the coasts of the
country through the action of water;
or
2. By reclamation projects like those
undertaken in Manila bay.
Accretion also covers the formation of
islands which extends the breadth of a
state’s territorial sea if occurring within the
maritime belt of the state.
1. As a result of the operation of
nature.
Ie. when an island is submerged to
the bottom of the sea because of a
volcanic eruption; or
2. Through some man-made method of
destruction
Ie. massive bombardment

Sector principle

• It is by using meridians in attempts to demarcate boundaries or claims on land and

in the ocean.

• sector principle traces longitudinal parallels from borders of countries adjacent to the
Arctic Circle to the North Pole, assigning the sectors so formed to the neighboring nations.

• In 1988, Donat Pharand concluded that "The sector theory has no legal validity as a
source of of title of State jurisdiction in the Arctic."

• No general conventions have been agreed to by the interested powers

acknowledging polar sectorism, which its existence must be validated by international
usage and treaties.

• Claims resting solely on the sector principle have been denied legal force by many
nations, including the United States, and it appears that only those claims of sovereignty
accompanied by government control may be eventually accepted under international law.
• USA, Russia, and many other countries did not recognised and implies that the
doctrine, which appears to be based on the notion of contiguity, is not without its
difficulties and does not command universal acceptance.

• The Soviet Union is the only subjacent state that actually incorporated it into its
municipal or national law. Others either have clearly rejected it, or, as in the case of
Canada, where a number of public officials openly approved the principle, the
government has neither manifestly denied nor condoned it.

References:

1.
https://www.researchgate.net/publication/237498251_The_Sector_Principle_Two_Indian_O
cean_Examples

2. https://collections.dartmouth.edu/arctica-beta/html/EA11-03.html

Chamizal Dispute

It was a dispute between US and Mexico regarding the boundary conflict bout 600 acres at
El Paso Texas between the bed of Rio Grande as surveyed in 1852. The river continually
shifter south between 1852 and 1868, with the most radical shift in the river occurring after
flood in 1864. By 1873 the river moved approximately 600 acres, cutting off land that was in
effect made US territory. It was first settled that the land was settled and incorporated as
part of El Paso. In 1895, the Mexico made a claim for the land. In 1910, the US and mexico
agreed on rules of arbitration. The arbitration was about whether or not the change in the
iriver’s course had been gradual,whether or not the boundaries set by treaties in 1848 and
1853 were fixed, and whether or not the 1884 treaty applied. The Treaty of Guadalupe
Hidalgo of 1848 and the Treaty of 1884. These agreements specified that the boundary
should be down the middle of the river along the deepest channel, regardless of any
alterations in the banks or channels. The Treaty of 1884 also provided that the alterations
had to result from such gradual natural causes as the erosion of alluvium and not from the
cutting off of land by floods or sudden changes in the river's course. This provision followed
the long-established doctrine of international law that when changes in the course of a
boundary river are caused by a deposit of alluvium, the boundary changes with the river, but
when changes are due to avulsion, the old channel remains the boundary. Mexico claimed
that the boundary had never changed and therefore that the Chamizal was technically
Mexican territory, while the United States claimed that the 1884 convention applied, that the
boundary was the result of gradual erosion, and that the property therefore belonged to the
United States.The tribunal proposed a settlement, where the part of the disputed tract lying
between the river bed as surveyed in 1852 and the middle of the river in 1864 was declared
US territory and the remainder of the tract was declared part of mexico. The US refused to
accept such settlement The Mexicans regarded the American refusal to accept the verdict
as evidence of unwillingness to negotiate in good faith. Finally, on 1963 the US and Mexico
ratified a treaty that generally followed the 1911 arbitration recommendations. The Mexico
was awarded with 366 acres of the Chamizal area and 71 of the Cardoval Island. While the
US received from a private Mexican Bank for 382 structures and 193 acres of the Cordova
Island from mexico. They also agreed to share equally in the cost of rechanneling the river.

Reference:

1. https://www.tshaonline.org/handbook/entries/chamizal-dispute)

Contemporary standards- Consent

Other matters to take into account for new states, other than sovereignty over territory,
would be effective occupation, consent, the right to self-determination and other
factors. On the discussion of consent, this may denote either: (1) the consent of a state in
relinquishing its claim over a given territory in favor of another state or; (2) the consent of
the international community to a State taking over a territory of another state.

An example for 1 could be America gradually relinquishing its hold over the Philippines
based on agreements. For 2, it’s a case-to-case basis as seen in the case of Goa.

In this particular case, Portugal refused to remove its hold on Goa, Damao, and Diu despite
(1) the Resolution of the General Assembly to begin transfer of all powers to non-self-
governing territories such as Goa and (2) India’s consistent request for negotiation to permit
it to take control of its colonized territories. Realizing negotiation will lead to nowhere, India
withdrew its diplomatic mission from Lisbon, the capital of Portugal.

This caused Portugal to grow paranoid and attacked a passenger boat between
Portuguese-held island and an Indian port in fear of a military landing party. Tensions
building between the duo, Portugal got the support of the 7 UN members while India got the
support of the Soviet, Yugoslavia, the Arab states, Ghana, Sri Lanka and Indonesia. Later,
China chose to support India as well while the other states (US, UK, France and Turkey)
negotiated and proposed resolutions to condemn the Indian invasion. Soviet countered this
with 3 others, vetoing the resolution and telling India to continue.

India proceeded to capture its former territories while the UN remained at a standstill. After
Portugal surrendered, India’s action caused both positive (Eastern side) and negative
opinions (Western side). When asked to justify its action, India could only use Article 51
which is an international rule mirroring self-defense. Unfortunately, the situation could not fit
in the necessary requirements to make India’s armed attack legal. In a surprising turn of
events, India was not punished for its violation. What happened was that most of the
members of the UN sympathized with India’s plight, to the point the Security Council and
General Assembly discretionarily chose not to condemn India’s action. This case is suis
generis because other countries have attempted to utilize the similar precedents of the Goa
case, but failed to obtain a similar result.
[I cannot seem to find this case sadly, only reading it through various international law
journals]

Reference:

Wright, Q. (1962). The Goa Incident. American Journal of International Law,

56(3), 617-632. doi:10.2307/2196501

Summary of 1st reference: https://www.ruleoflaw.org.au/the-annexation-of-goa/

PRINCIPLE OF UTI POSSIDETIS JURIS

It is the principle of international law which provides that newly formed sovereign States should
have the same borders as those of the State preceding them. It finds application in cases where
a former colony gains independence. As illustrated in the Frontier Dispute case between
Burkina Faso and Mali, the ICJ characterized the principle as akin to freezing of territory or
maintaining the status quo over territory, which creates a photograph of the territory.

uti possidetis juris (UPJ) is a principle of customary international law that serves to preserve the
boundaries of colonies emerging as States. Originally applied to establish the boundaries of
decolonized territories in Latin America, UPJ has become a rule of wider application, notably in
Africa.

FRONTIER DISPUTE: BURKINA FASO AND REPUBLIC OF MALI

On September 16, 1983, a special agreement between the Republic of Upper Volta (Burkina
Faso) and Republic of Mali desires to settle the frontier dispute between them, based on the
principle of intangibility of frontiers inherited from colonization, and to effect the definitive
delimitation and demarcation of their common frontier (uti possidetis juris). The dispute
wanted to answer as to what is the line of the frontier between the said parties in the disputed
area which consists of a band of territory extending from the sector Koro (mali) Djibo (Upper
Volta) up to and including the region of Beli. Following grave incidents between the armed
forces of the two countries, both parties submitted parallel requests for interim measures of
protection.

In its judgment, the Chamber began to ascertain the source of the rights claimed by the said
parties. And that in the said case, the principle of intangibility of frontiers inherited from
colonization and the principle of uti possidetis juris, which accords pre-eminence to legal title
over effective possession as basis of sovereignty and whose primary aim is to secure respect
for the territorial boundaries which existed at the time when the independence was achieved.

When the boundaries were no more than delimitations between different administrative divisions
or colonies all subject to the same sovereign, the application of the principle of uti possidetis
juris resulted their being transformed into international frontiers such as the present case. The
parties relied on evidence to give support to their arguments, such the french legislative and
regulatie text such as the administrative documents, maps and others which is the conduct of
the administrative authorities as proof of the effective exercise of territorial jurisdiction in
the region during the colonial period.

Both States involved derive their existence from the process of decolonization which has been
unfolding in Africa during the past 30 years. The said territories were formerly part of the french
colonies which were grouped under French West Africa. Before the accession to independence
of the two states, and disregarding the previous administrative changes, it can be said that
Burkina Faso corresponds to the colony of Upper Volta and Republic of Mali to the colony of
French Sudan. The principle of uti possidetis juris is an established principle in international
law where the phenomenon of decolonization occurred involving the formation of a
number of sovereign states on territory formerly belonging to a single state. It is also a
general principle which is connected to the phenomenon of obtaining independence wherever it
occurs. Its purpose is to prevent the independence and stability of new states being endangered
by struggles provoked by the challenging of frontiers following withdrawal of administrative
power. The essence of the principle lies in its primary aim of securing respect for the territorial
boundaries at the moment when independence is achieved.

Since the territories of the two states had been part of the French west africa, the former
boundary between them then became an international frontier only at the moment when they
became independent. By becoming independent, a new State acquires sovereignty with the
territorial base and boundaries left to it by the colonial power. This is part of the ordinary
operation of the machinery of State succession. the principle of uti possidetis - applies to the
new State (as a State) not with retroactive effect, but immediately and from that moment
onwards. It freezes the territorial title. International law does affect any renvoi to the law of the
colonizing State. If the latter law has any part to play, it is as one factual element among others,
or as evidence indicative of the "colonial heritage" at the critical date.

The fact that the new African States have respected the territorial status quo which existed
when they obtained independence must therefore be seen not as a mere practice but the
application in Africa of a rule of general scope which is firmly established in matters of
decolonization.The essential requirement of stability in order to survive, to develop and
gradually to consolidate their independence in all fields has induced African States to consent
tab the maintenance of colonial boundaries or frontiers, and to take account of this when
interpreting the principle of self-determination of peoples.

Contiguity as a mode of Acquisition

Contiguity
 ● effective occupation of part of a region or territory gave title to the whole of the
unoccupied region or territory proximate enough to be considered as a single
geographic unit with the occupied portion.
● In the concept of International Law, it is a rebuttable presumption that the legal
status of territory should follow that of territory to which it is adjacent or proximate .
● often invoked in support of claims to sovereignty over territory.

THE ISLAND OF PALMAS (1925)

FACTS:

Palmas (Miangas) is an island of little economic value or strategic location. It located is 2.6
km in north–south length and 1.0 km in east–west width. It had a population of about 750 in
1932, when the case was decided. The island is located approximately 100 miles ESE of
General Santos City, Philippines and 400 miles North of the Talaud Islands, the next-
northernmost part of Indonesia.

Both the United States and the Netherlands laid claim to the ownership of the Island of
Palmas. US argued that Palmas was US’ territory because the island was closer to the
Philippines than to Indonesia which was then held by the Netherlands East Indies. The
American government finally maintained that Palmas forms a geographical part of the
Philippine group and is closer to the Philippines than to the Dutch East Indies. Thus, the
principle of contiguity substantiated the claim that it belongs to the power with sovereignty
over the Philippines. The claim of the U.S. was back up with the fact that the islands had
been ceded by Spain by the Treaty of Paris in 1898, and as successor to the rights of Spain
over the Philippines, it based its claim of title in the first place on discovery.

The Netherlands considered that the fact of discovery by Spain was not proved, and the
same held for any other form of acquisition. Even if Spain had ever the title, it had been lost.
The principle of contiguity was contested. The main argument was that the Netherlands,
represented by the East India Company, possessed and exercised rights of sovereignty
from 1677 or even prior to 1648. Sovereignty arose out of conventions entered into with
native princes of Sangi (the main island of the Talautse Isles) to stabilize the sovereignty of
the Netherlands over the territories of the princes, including Palmas (or Miangas). That state
of affairs set up was claimed to be validated by international treaties.

ISSUE:

Whether or not the Island of Palmas (or Miangas) in its entirety forms a part of territory
belonging to the United States of America.
RULING:

The Arbitrator in conformity with Article I of the Special Agreement of 23 January 1925
DECIDES that : THE ISLAND OF PALMAS (or MIANGAS) forms in its entirety a part of the
Netherlands territory.

The United States argued that it held the island because it had received actual title by
legitimate treaties from the original discoverer of the island, Spain. The United States
argued that Spain acquired title to Palmas when Spain discovered the island and the island
was terra nullius (nobody’s island). Spain's title to the island, because it was a part of the
Philippines, was then ceded to the United States under the Treaty of Paris (1898) after
Spain's defeat in the Spanish–American War. The arbitrator noted that no new international
law invalidated the legal transfer of territory via cession.

However, the arbitrator noted that Spain could not legally grant what it did not hold and the
Treaty of Paris could not grant Palmas to the United States if Spain had no actual title to it.
The arbitrator concluded that Spain held an inchoate title when Spain "discovered" Palmas.
However, for a sovereign to maintain its initial title via discovery, the arbitrator said that the
discoverer had to actually exercise authority even by as simple an act as planting a flag on
the beach. Spain did not exercise authority over the island after making an initial claim after
discovery and so the American claim was based on relatively weak grounds.

The United States argued that Palmas was American territory because the island was
closer to the Philippines than to the Netherlands East Indies. The arbitrator said that there
was no positive international law for the American view of terra firma in which the nearest
continent or island of considerable size gives title to the land in dispute. The arbitrator held
that mere proximity was not an adequate claim to land and noted that if the international
community followed the proposed American approach, that would lead to arbitrary results.

The Netherlands' primary contention was that it held actual title because the Netherlands
had exercised authority on the island since 1677. The arbitrator noted that the United States
had failed to show documentation proving Spanish sovereignty on the island except the
documents that specifically mentioned the island's discovery. Additionally, there was no
evidence that Palmas was a part of the judicial or administrative organization of the Spanish
government of the Philippines. However, the Netherlands showed that the Dutch East India
Company had negotiated treaties with the local princes of the island since the 17th century
and had exercised sovereignty, including a requirement of Protestantism and the denial of
other nationals on the island. The arbitrator pointed out that if Spain had actually exercised
authority, there would have been conflicts between the two countries, but none is provided
in the evidence.
Thus, a title that is inchoate cannot prevail over a definite title found on the continuous and
peaceful display of sovereignty. Peaceful and continuous display of territorial sovereignty is
as good as title. However, discovery alone, without a subsequent act, cannot suffice to
prove sovereignty over the island. The territorial sovereignty of the defendant, Netherlands,
was not contested by anyone from 1700 to 1906 so the title of discovery was, at best, an
inchoate title and does not prevail over the Netherlands claims of sovereignty.

NOTE:

● At present, the Island of Palmas is part of Indonesia.

● Title based on contiguity has no standing in international law;
● Title by discovery is only an inchoate title;
● If another sovereign begins to exercise continuous and actual sovereignty openly
and publicly and with good title, but the discoverer does not contest the claim, the
claim by the sovereign that exercises authority is then greater than a title based on
mere discovery.

IS CONTIGUITY A MODE OF ACQUISITION?

● Based on “The Island of Palmas” Case, title based on contiguity is NOT mode
of acquisition.
● Acquisition by contiguity is a rebuttable presumption that the legal status of territory
should follow that of territory to which it is adjacent or proximate.
○ This could only create an inchoate title.
○ Inchoate title cannot prevail over a definite title found on the continuous and
peaceful display of sovereignty.
○ Peaceful and continuous display of territorial sovereignty is as good as title.

SPRATLY ISLANDS

● Because of the closeness of the Spratlys to Philippine territory, it has been ARGUED
that the area belongs to the Philippines by contiguity.

Shared Sovereignty case Concerning East Timor 1995 ICJ Rep 90

FACTS:
On 22 February 1991, Portugal filed an Application instituting proceedings
against Australia concerning “certain activities of Australia with respect to
East Timor”, in relation to the conclusion, on 11 December 1989, of a
treaty between Australia and Indonesia which created a Zone of
Co-operation in a maritime area between “the Indonesian Province of
East Timor and Northern Australia”. According to the Application, Australia
had by its conduct failed to observe the obligation to respect the duties and
powers of Portugal as the Administering Power of East Timor and the right
of the people of East Timor to self-determination. In consequence,
according to the Application, Australia had incurred international
responsibility vis-à-vis the people of both East Timor and Portugal. As the
basis for the jurisdiction of the Court, the Application referred to the
declarations by which the two States had accepted the compulsory
jurisdiction of the Court under Article 36, paragraph 2, of its Statute.
ISSUE:

Whether, having regard to the circumstances in which Indonesia

entered and remained in East Timor, it could or could not have
acquired the power to enter into treaties on behalf of East Timor
relating to the resources of the continental shelf.
HELD:

The territory of East Timor remained a non-self-governing territory

and its people had the right to self-determination, but considered that
the resolutions could not be regarded as “givens” constituting a
sufficient basis for determining the dispute between the Parties. It
followed from all the foregoing considerations that the Court would
necessarily first have to rule upon the lawfulness of Indonesia’s conduct.
Indonesia’s rights and obligations would thus constitute the very subject-
matter of such a judgment made in the absence of that State’s consent,
which would run directly counter to the principle according to which “the
Court can only exercise jurisdiction over a State with its consent”. The
Court accordingly found that it was not required to consider
Australia’s other objections and that it could not rule on Portugal’s claims
on the merits.

AIR
Chicago Convention on International Aviation

General Principles:

Chapter 1 – General Principles and Application of the Convention

Article 1 – Sovereignty – “The contracting states recognize that every state has complete
and exclusive sovereignty over the airspace above its territory.” Under this provision,
contracting states of the convention are under the obligation of recognizing and respecting other
contracting states’ sovereignty, in particular the airspace above its territory.

Article 2 – Territory – “For the purpose 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.” This article defines the word
“territory” under the auspices of the convention.

Article 3 – Civil and State Aircraft – (a) This Convention shall be applicable only to civil
aircraft, and shall not be applicable to state aircraft.

Difference between Civil and State Aircraft:

Civil Aircraft is defined as a non-military aircraft, both private and commercial. While State
Aircraft is defined as all aircraft owned and operated by the government. This definition is very
wide and is based on ownership. Consequently, not only typical State aircraft, such as military,
police, or customs aircraft, but equally aircraft owned and operated by a public body for
commercial purposes are considered State aircraft. An aircraft may originally be considered as
a Civil Aircraft but if the state uses such for its military operation, it may be considered to be a
state aircraft. This is highlighted in the next provision.

(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. This means that contracting states shall establish all necessary provisions
in its national laws or regulations to make such compliance mandatory for any civil aircraft registered in
that State or operated by an operator who has his principal place of business or permanent residence in
that State. Each contracting State shall make any violation of such applicable laws or regulations
punishable by severe penalties and shall submit the case to its competent authorities in accordance with
its laws or regulations.

(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. Under this provision,
Each contracting State shall take appropriate measures to prohibit the deliberate use of any civil aircraft
registered in that State or operated by an operator who has his principal place of business or permanent
residence in that State for any purpose inconsistent with the aims of this Convention. This provision
shall not affect paragraph (a) or derogate from paragraph (b) and (c) of this Article.

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 this convention establishes
rules of airspace, aircraft registration and safety, and details the rights of the signatories in
relation to air travel. Each contracting party is expected to follow such purpose particularly in its
use of civil aircraft and aviation.

Chapter 1 of the convention simply enumerates basic rules and regulation that each contracting
state must adhere into. It also laid out what is to be expected of contracting states in its exercise
of its sovereignty.

Space Aircraft restrictions (Art 3 par 3)

Article 3 Paragraph 3

(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.

The convention is normally applicable to civil aircraft and not to state aircraft. All aircraft used
in military, customs and police services “shall be deemed to be state aircraft”. However, the
convention does not provide 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 thereof.” This means that no aircraft used in the military services may be
flown into or over the territory or territorial waters of another state without special permission
having been received even though as between the two states concerned an agreement may exist
granting reciprocal flight privileges to military aircrafts.

Airspace over a particular country is controlled by that country. It is the country’s aviation
regulatory body (Civil Aviation Authority of The Philippines) and the air-traffic control
organizations that determine where, when and how aircraft are allowed to fly. Local
regulations, pilots and airlines are required to follow the directives of the country in which they
are registered.

Airspace restrictions
Airspace restrictions are generally set up for two reasons:

1. to ensure the safety of aircraft and their occupants and

2. to ensure the safety of people on the ground.

In the case of some restricted military airspace, this may be because of training flights or
weapons testing.

Restrictions may also exist because the country is trying to protect an asset inside the restricted
airspace. Example of this is the prohibited flight zones in and around Washington, DC, where
flights below 18,000ft are generally prohibited without prior authorization. These were created
to reduce the risk that someone would use aircraft to damage or destroy portions of the United
States government.

Other restrictions will arise from disruptions to normal aviation services. For instance, if the
air-traffic control radar at an airport fails, certain types of flights may be prohibited.

The specific details of each flight restriction are published as a Notice to Airmen (NOTAM).

These documents tell pilots the location, applicable times and the specific restrictions for each
area of restricted airspace. Many of them will also give the reason for the restriction and the
consequences that may arise from a violation.
ARTICLE 5. Right of non-scheduled flight (NEGRETE)

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 to make flights into or in transit nonstop across its territory

Right 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 (However, the state may
require the aircraft to make a landing)

Right 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

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

The fact that ‘no prior permission’ needs to be obtained does not mean that the first paragraph
of Article 5 is conferring absolute freedom on non-scheduled flights – the non-scheduled
flights may only be performed ‘subject to the terms of the Convention’.

Non-Scheduled Flight means travel in an aircraft whose flights are not conducted in
accordance with fixed flying schedules, over specific air routes, to and from fixed terminals.

Non-scheduled flights are frequently performed on a non-commercial basis. Examples

are general aviation services such as flights performed by private jets and rescue
missions by aircraft operated by humanitarian organizations.

ARTICLE 6. Scheduled Air Services (MAGBITANG)

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.

Under the Chicago Convention, international air service is defined as “air service
which passes through the air space over the territory of more than one space.”

In this article, the Chicago Convention again reiterates the complete and exclusive
sovereignty of states over their airspace, as scheduled international air services, such as
commercial airlines, cannot operate without the permission or authorization of the contracting
State In whose territory an aircraft wishes to fly.
 Once authorization is acquired, the air service should also be done in accordance with
the terms established by that State.

ARTICLE 7. CABOTAGE (MOJICA)

Introduction to Cabotage
In its attempt to provide protection for civil aircraft, the Chicago Convention on
International Civil Aviation delineated a standard rule on air transport service which is being
offered between two or more points situated in the territory of the same State—otherwise known
as cabotage.
The International Civil Aviation Organization’s Manual on the Regulation of International
Air Transport points out that air cabotage is the authorized right or privilege granted to a foreign
carrier to transport cabotage traffic, which is otherwise prohibited.
Article 7 of the International Civil Aviation Convention (Chicago, 1944) states that any
contracting State has the right to refuse permission of the aircraft of the other contracting States
to have passengers, mail or cargo embark on its territory for transportation by means of
remuneration or hire, destined for another point within its own territory.
From this provision, it is understood that States may reserve the right to operate
cabotage services for their own carriers exclusively.
The same article adds that, if a State grants cabotage rights to another State, it must do
so on the basis of non-discrimination, i.e. it may not withhold it as an exclusive privilege.

Necessity of not opening cabotage to foreign air carriers

Historically, many reasons have been raised to support the necessity of not opening
cabotage to foreign air carriers, such as:
1. Concerns of national security;
2. Avoiding that the negotiated traffic rights with one State be taken advantage of by
another State;
3. Protecting national carriers from excessive competition;
4. Safeguarding salaries and other working conditions;
5. Avoiding the problem of the “flags of convenience” which operate with lower safety
standards, labor conditions or environmental protection, etc.
In consideration of these factors, the majority of States continue reserving cabotage for
their national carriers.

Aspects of Aviation Safety and Security

Among the reasons justifying the reservation of cabotage only for national carriers,
usually wields the greatest risk that could arise for the safety and security of aviation.
Indeed, in the case of safety, it is argued that the airlines from other States may have
less stringent standards than those of the State in which they will operate. Similarly, the fact of
allowing cabotage operations of foreign airlines could undermine the necessary protection
against acts of unlawful interference.
Reference: https://www.icao.int/Meetings/a39/Documents/WP/wp_440_rev1_en.pdf
(culled 20 March 2021)

ARTICLE 17 Nationality of an Aircraft

Concept/Origin/Chicago Convention

· Such articles were influenced largely by the analogy of maritime commerce. Jurists sought
to accomplish and assign each air-craft its nationality and using that as a test to fix privileges
of flight and power to control

· Pursuant to the chicago convention, aircrafts have the nationality of the state in which
they are registered and such all aircraft engaged in international naviation shall bear
appropriate nationality and registration marks in order to permit identification.

Purpose to implement the nationality

· It is designated as a requirement for economic control. It is to protect the national airline of

the contracting state and it is part of a more complex control of capacity, frequency and route
allocaitions incorporated in the bilateral agreements. So long as there is a tendency to regard
commercial international routes and traffic as a potential commodity by the contracting states,
it is not expected that states will relax the ownership and control requirements with respect to
designated airlines

Determination of such nationality

· Under the Chicago mention, in determing the nationality of such aircraft, it is the state
where it was registered that bears the flag and nationality of the aircraft

· Various rules have been suggested by publicists and jurists before the implementation of
the Chicago convention. One of the important rules in determining nationality is

o Nationality of the craft to be that of its owner

o state of the domicile of the owner

o state where in it is usually kept (called port d’attache)

Registration of an Aircraft

· Articles 18,19,21 of the ICAO concerns on the topic of registering the aircraft. It is stated
there that it can only be registered in one state but can be transferred. Such registration
thereof in any contracting state shall be made in accordance with its laws and regulations. (in
which case, The civil aviation authority governs the aircraft regulation and registration in our
country)
· An aircraft may only be registered in the Aircraft Register (i) if it is owned by or leased/ to a
citizen or citizens of the Philippines, upon proper application by such owner or lessee, and (ii)
if such aircraft is deregistered first from the aircraft register of such foreign country.

· Lastly, Contracting states undertake to supply information to any other contracting state
or the ICAO. Such information concers the registration and ownership of any particular
aircraft registered in that state.

Purpose to register the aircraft

· Its purpose may be said to have political control. It vests the state of registry with
responsibility for the performance of the aircraft and accept licenses, certificates of
airworthiness, crew qualifications by tother contracting states (In short its like to regulate
the requirements for an airline company or to register the aircraft in the state)

Changing of aircraft nationality

· The change of aircraft nationality or registration from one State to another is referred to as
cross-border transfers of aircraft.

· The XBT process inherently involves two States: the current State of Registry (the exporting
State) and the intended future State of registry (the importing State). This diagram represents a
simple process of cross-border transfer of aircraft from one State to another. An aircraft is
simply de-registered in one State and registered in another. The simple process does not
require moving an aircraft, obtaining a special flight permit or involving other special
arrangements. However, in most cases, cross-border transfers of aircraft are not simple
because of significant differences in States’ requirements and associated processes.
(EXPLANATION TO THE DIAGRAM)

· An example is when an aircraft with a valid Certificate of Airworthiness issued by one

State is entering on the register of another State; the new State of Registry does not
automatically issue a Certificate of Airworthiness. The aircraft needs to comply with the
requirements of the new State of Registry, which may be different from those of the previous
State of Registry

Nationality Marks and registration marks

· After the aircraft’s nationality has been determined and such was registered in
the contracting state, it will bear its appropriate nationality and registration marks

· Nationality marks are used to help contracting states determine the origin or country of
the aircraft registered in while registration marks are used to help in identifying certain details
for aircrafts such as aircraft specification and type, owner of such aircraft and date of
registration

\
ARTICLE 16 - Power to Search

Article 16 of the Chicago Convention states that the appropriate authorities of each of
the contracting parties shall have the right, without unreasonable delay, to search aircraft of the
other contracting States on landing and departure, and to inspect the certificates and other
documents prescribed in the Chicago Convention.

The documents that shall be carried by all Aircraft are enumerated in Article 29 of
the Chicago Convention. Every aircraft of a contracting State that is engaged in international
navigation shall carry the following documents: 1) Certificate of Registration; 2) Certificate of
Airworthiness; 3) Appropriate licenses for each member of the crew; 4) Journey log book; 5)
Aircraft radio station license, if the aircraft is equipped with a radio apparatus; 6) List of names
and places of embarkation and destination, in the event that the aircraft is carrying any
passengers; 7) A manifest and detailed declaration of all its cargo, in the event that the aircraft
is carrying cargoes.

Certificate of Registration

ICAO Standards in Annex 7, Registration of Aircraft, require a contracting State must have a
process for registration and marking of aircraft. In the Philippines, it is the Civil Aviation Authority
of the Philippines (CAAP) under the Department of Transportation which processes and
provides information and guidelines for the registration of aircraft.

Certificate of Airworthiness

A certificate of airworthiness issued or rendered valid by the State in which the aircraft is
registered. Every aircraft engaged in International Navigation shall oblige with this requirement.
It is a formal document which grants an authorization to operate an aircraft in flight. ICAO
Standards in Annex 8 provides that in the interest of safety, an aircraft must be designed,
constructed and operated in compliance with the appropriate airworthiness requirements of its
State of Registry. In the Philippines, it is also the CAAP which is responsible for issuing an
airworthiness certificate.

Licenses of personnel

The pilot of every aircraft and the other members of the operating crew of every aircraft
engaged in international navigation shall be provided with certificates of competency and
licenses issued or rendered valid by the State in which the aircraft is registered. Contracting
States reserves the right to refuse to recognize, for the purpose of flight above its own territory,
certificates of competency and licenses granted to any of its nationals by another State.

Journey Log Books

An aircraft engaged in international navigation shall maintain a journey log book in which the
particulars of the aircraft, its crew and of each journey, shall be entered.

Cargo Restrictions

No munitions of war or implements of way may be carried in or above the territory of a

State in aircraft engaged in international navigation, except by permission of such State. Each
State shall determine by regulation if what constitutes munitions of war or implements of war,
giving due consideration for the purposes of uniformity, to the recommendations of the
International Civil Aviation Organization (ICAO).

Each contracting State reserves the right, for reasons of public order and safety, to
regulate or prohibit carriage in or above its territory of articles other than those enumerated in
the preceding paragraph. However, there should be no distinction in this respect, between its
national aircraft engaged in international navigation and the aircraft of other States so engaged.
In addition, no restriction shall be imposed which may interfere with the carriage and use on
aircraft of apparatus necessary for the operation or navigation of the aircraft or the safety of the
personnel or passengers.

ARTICLE 25 - Aircraft in Distress

Under Article 25, each contracting state undertakes to provide such measures of assistance to
aircraft in distress in its territory as it may find practicable. In addition, each contracting state,
when undertaking search for missing aircraft, will collaborate in coordinated measures which
may be recommended from time to time pursuant to this convention.

Mayday is an international distress signal used by ships and aircraft in emergencies. This is a
voice call used in radio communications, and is usually said three times in a row: Mayday!
Mayday! Mayday! The term mayday actually represents the pronunciation of the French
m’aider, which means “come and help me”.

DRONES

Nowhere in the Chicago Convention explicitly mention drones. However, Art. 8 of the same
makes reference to “aircraft being capable of being flown without a pilot”, that is – according to
the 11th ICAO Air Navigation Conference – without a pilot-in-command onboard.

The rules that apply to ordinary aircrafts also apply to drones; such as 1) they still need special
authorization from the contracting state so that a drone may be flown over their territory,
pursuant to Art. 3(c); and 2) that such drones shall be so controlled as to obviate danger to civil
aircraft, pursuant to Art. 3(d).

VALID INTERCEPTION
Pursuant to the 1981 resolution of the ICAO, intrusion into the air space by civilian aircraft may
be intercepted, but such is attended by the principle that States must refrain from using weapons
against the aircraft, following the rules of customary international law contained in article 3 bis
and annexes of the 1944 Chicago Convention on International Civil Aviation and with
elementary consideration of humanity. To eliminate or reduce the hazards inherent in
interceptions, the Convention recommends the use of radio and visual signals to be given
between intercepting and intercepted aircraft. Naturally, the use of force during an interception
must be proportional to the threat and adequate to the situation; the loss of life to civilians or
other protected persons must not be “disproportionate to the military advantage gained or
anticipated.”

The same kind of protection is loosely afforded to military aircrafts.

A state can lawfully attack its enemy's military and economic assets, including enemy military
aircraft. Article 3 bis of the Chicago Convention declares that “every State must refrain from
resorting to the use of weapons against civil aircraft in flight.” However, this same provision also
makes clear that it must not be “interpreted as modifying in any way the rights and obligations of
States set forth in the Charter of the United Nations. The Chicago Convention implicitly
recognizes the inherent right of every state to act in self-defense in accordance with Article 51 of
the U.N. Charter.

In one instance, the Soviet Union justified its attack on the South Korean airliner by saying it had
mistaken the aircraft for an American reconnaissance aircraft. They maintain that it was proper
to assume the intruder was involved in a clandestine operation and therefore was not a civil
aircraft to which the protective provisions of the Chicago Convention would apply and that its
destruction under the circumstances was not contrary to international law (citing the U.N.
Charter recognition of a right to self-defense).

Air Law expert, Olivia Lissitzyn, tried to reconcile the rules and opined that aircrafts must not
only 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, so as not to expose the
aircraft and its occupants to unnecessary and unreasonable danger.
 Five Freedoms (of Air Transportation for Scheduled International Services)

The freedoms of the air are a set of commercial aviation rights granting a country's
airlines the privilege to enter and land in another country's airspace. They were formulated as a
result of disagreements over the extent of aviation liberalization in the Convention on
International Civil Aviation of 1944, known as the Chicago Convention. The freedoms of the air
are the fundamental building blocks of the international commercial aviation route network. The
use of the terms "freedom" and "right" confers entitlement to operate international air services
only within the scope of the multilateral and bilateral treaties (air services agreements) that allow
them.

The first two freedoms concern the passage of commercial aircraft through foreign airspace and
airports, while the other freedoms are about carrying people, mail and cargo internationally. The
first through fifth freedoms are officially enumerated by international treaties, especially the
Chicago Convention. Several other freedoms have been added, and although most are not
officially recognized under broadly applicable international treaties, they have been agreed to by
a number of countries.

First Freedom. The freedom to overfly a foreign country (A) from a home country en-route to
another (B) without landing. Also called transit freedom.

After the end of the Cold War, the first freedom is widely available across the world, but
countries such as Russia often limit the transit freedom to a few carriers.

Second Freedom. The freedom to stop in a foreign country for a technical/refueling purpose
only. A flight from a home country can land in another country for purposes other than carrying
passengers, such as refueling, maintenance, or emergencies.

Third Freedom. The freedom to carry traffic from a home country to another country for the
purpose of commercial services.

Fourth Freedom. The freedom to pick up traffic from another country to a home country for the
purpose of commercial services.

The Third and Fourth Freedoms are the basis for direct commercial services, providing the
rights to load and unload passengers, mail, and freight in another country. They are commonly
reciprocal agreements implying that the two involved countries will open commercial services to
their respective carriers simultaneously.

Fifth Freedom. The freedom to carry traffic between two foreign countries on a flight that either
originated in or is destined for the carrier’s home country. It enables airlines to carry passengers
from a home country to another intermediate country and then fly on to third-country with the
right to pick passengers in the intermediate country. Also referred to as “beyond right”. This
freedom is divided into two categories: Intermediate Fifth Freedom Type is the right to carry
from the third country to the second country. Beyond Fifth Freedom Type is the right to carries
from a second country to a third country.

A salient issue remains that air freedoms are independent of trade agreements.
Therefore, a free trade agreement could exist between two nations, implying a liberalization of
commercial transactions and the opportunity for respective corporations to invest. However,
their respective air carriers could still operate under the same commercial restrictions as before
the trade agreement.