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Law 111 Public International Law

Atty. GILBERT R. HUFANA


Professor

Territory in International Law

Territory
the fixed and permanent portion on the earths surface inhabited by the people of the state and over which it has supreme authority consists of the portion of the surface of the globe on which that State settles and over which it has supreme authority an exercise of sovereignty, covering not only land, but also the atmosphere as well

Characteristics
Permanent Definite/Indicated with Precision
Generally, the territorys limits define the States jurisdiction

Big enough to sustain the population Not so extensive as to be difficult to:


Administer; and Defend from external aggression

Modes of Acquisition of Territory


By Original Title
Discovery and Occupation Accretion

By Derivative Title
Prescription Cession Conquest/Subjugation

Modes of Acquisition of Territory


Other Modes
Dereliction/Abandonment Erosion Revolution Natural Causes

Discovery and Occupation


An original mode of acquisition of territory belonging to no one terra nullius land to be acquired must be terra nullius

Discovery and Occupation


2 Requisites: Doctrine of Effective Occupation
Discovery/Possession
Mere discovery gives only an Inchoate Right of Discovery Once the discovering state begins exercising sovereign rights over the territory, the inchoate right ripens and is perfected into a full title

Effective Occupation
Does not necessarily require continuous display of authority in every part of the territory claimed

Prescription
acquisition of territory by an averse holding continued through a long term of years derivative mode of acquisition by which territory belonging to 1 State is transferred to the sovereignty of another State by reason of the adverse and uninterrupted possession thereof by the latter for a sufficiently long period of time

Prescription
2 REQUISITES continuous and undisturbed possession lapse of a period of time
No rule as to length of time required Question of fact

Q: What is the source of this right? A: Roman principle of usucapio (long continued use of real property ripened into ownership)

Cession
a derivative mode of acquisition by which territory belonging to 1 State is transferred to the sovereignty of another State in accordance with an agreement between them a bilateral agreement whereby one State transfers sovereignty over a definite portion of territory to another State E.g. Treaty of cession (maybe an outcome of peaceful negotiations [voluntary] or the result of war[forced])

Conquest
derivative mode of acquisition whereby the territory of 1 State is conquered in the course of war and thereafter annexed to and placed under the sovereignty of the conquering State the taking possession of hostile territory through military force in time of war and by which the victorious belligerent compels the enemy to surrender sovereignty of that territory thus occupied

Conquest
acquisition of territory by force of arms however, conquest alone merely gives an inchoate right; acquisition must be completed by formal act of annexation no longer regarded as lawful UN Charter prohibits resort to threat or use of force against a States territorial integrity or political independence

Military Belligerent Occupation


Not equivalent to conquest Act whereby a military commander in the course of war gains effective possession of an enemy territory By itself, does not effect an acquisition of territory

Accretion
the increase in the land area of a State caused by the operation of the forces of nature, or artificially, through human labor Accessio cedat principali (accessory follows the principal) is the rule which, in general, governs all the forms of accretion. Examples:
Reclamation projects in Manila Bay Polders of the Netherlands

What comprises a territory?


Territorial Domain (Land mass) Internal Waters Maritime and Fluvial Domain Aerial Domain

What comprises a territory?


1. TERRITORIAL DOMAIN
The landmass where the people live

The Philippine Territory (1987 Constitution)


Article I. National Territory
The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.

The Philippine Territorial Domain


The Philippine Archipelago is considered as a Single Territorial Entity Basis:
1. Treaty of Paris - Between Spain and the U.S., signed in Paris on December 10, 1898 2. Treaty Between Spain and the U.S. for the Cession of Outlying Islands of the Philippines, signed in Washington on November 7, 1900 3. Convention Between the U.S. and Great Britain Delimiting the Philippine Archipelago and the State of Borneo, signed in Washington on January 2, 1930

Treaty of Paris
transferred Philippine sovereignty from Spain to the U.S. upon payment of twenty million dollars ($20,000,000) within three months after treaty ratification The boundaries of the Philippine archipelago defined in Article III of the Treaty of Paris of 1898 did not include two small islands: Sibutu at the extreme southwest of the Sulu group toward Borneo and Kagayan de Sulu, lying northwest of Jolo and of some strategic value

The Cession Treaty of 1900


Spain relinquishes to the U.S. all title and claim of title, which she may have had at the time of the conclusion of the Treaty of Paris, to any and all islands belonging to the Philippine Archipelago, lying outside the lines described in Article III of that Treaty and particularly to the islands of Cagayan, Sulu and Sibutu and their dependencies, and agrees that all such islands shall be comprehended in the cession of the Archipelago as fully as if they had been included within those lines.

The Boundaries Treaty of 1930


clarifies those islands in the region belonging to U.S. and those to the State of North Borneo and delimits the boundary between the Philippine Archipelago (under U.S. sovereignty) and the State of North Borneo (under British protection) solely focused on the status of the Turtle Islands and the Mangsee Islands sovereignty over these islands was transferred to the U.S.

The Philippine Territorial Domain

The Philippine Territorial Domain

Mangsee Islands

Cagayan de Sulu Turtle Islands

Sibutu

Territories claimed by the Philippines


Spratlys Islands Sabah (North Borneo) Scarborough Shoal

The Spratlys
a disputed group of more than 750 reefs, islets, atolls, cays, and islands in the South China Sea States staking claims to various islands are: Brunei, China (People's Republic of China), Malaysia, the Philippines, Taiwan (Republic of China), and Vietnam the Spratly area holds significant reserves of oil and natural gas, it is a productive area for world fishing and commercial shipping, and coastal countries would get an extended continental shelf

Where is Spratlys?

The Philippine Claim over Spratlys


The Philippines base their claims of sovereignty over the Spratlys on the issues of Res nullius and geography
no effective sovereignty over the islands until the 1930s when France and then Japan acquired the islands When Japan renounced their sovereignty over the islands according to the San Francisco Treaty, there was a relinquishment of the right to the islands without any special beneficiary. Therefore, argue the Philippines, the islands became Res nullius and available for annexation

The Philippine Claim over Spratlys


In 1956, a private Filipino citizen, Tomas Cloma, unilaterally declared a state on 53 features in the South China Sea, calling it "Freedomland On June 11, 1978, President Ferdinand Marcos of the Philippines issued Presidential decree No. 1596, declaring the Spratly Islands (referred to therein as the Kalayaan Island Group) as Philippine territory.

The Philippine Claim over Spratlys


On the basis of geography
Kalayaan is distinct from other island groups in the South China Sea, because of the size of the biggest island in the Kalayaan group all the islands claimed by the Philippines lie within its 200-mile Exclusive Economic Zone according to the 1982 United Nations Convention on the Law of the Sea (UNCLOS)

Current State of Spratlys

The Sabah (North Borneo) Dispute


the territorial dispute between Malaysia and the Philippines over much of the eastern part of Sabah The Philippines, presenting itself as the successor state of the Sultanate of Sulu, retains a "dormant claim" on 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.

The Sabah (North Borneo) Dispute


The Sultanate of Sulu was granted the northeastern part of the territory as a prize for helping the Sultan of Brunei against his enemies and from then on that part of Borneo was recognized as part of the Sultan of Sulu's sovereignty. In 1878, the Sultanate leased such territory to the British North Borneo Company The 1878 cession/rental payment was continued until the independence and formation of the Malaysian federation in 1963

The Sabah (North Borneo) Dispute


As of 2004, the Malaysian Embassy to the Philippines had been paying cession/rental money amounting to US$1,500 per year to the heirs of the Sultanate of Sulu The Sultan of Sulu relinquished the sovereign rights over all his possessions in favor of Spain, based on Bases of Peace and Capitulation signed by Sultan of Sulu and Spain in Jolo on 22 July 1878

The Sabah (North Borneo) Dispute


In 1885, Spain relinquished all of its claim to Borneo to the United Kingdom of Great Britain and Ireland in the Madrid Protocol of 1885 In spite of that, in 1906 and 1920 the US, which by then colonized the Philippines, formally reminded the UK that Sabah belonged not to them but to the Sultanate of Sulu.
America posited the claim on the premise that Spain never had acquired sovereignty over North Borneo, and thus did not have the right to transfer claims of sovereignty over North Borneo to UK in the Madrid Protocol of 1885

The Sabah (North Borneo) Dispute


On 12 September 1962, the territory of North Borneo, and the full sovereignty, title and dominion over it were ceded by then reigning Sultan of Sulu, Muhammad Esmail E. Kiram I, to the Philippines.
The cession effectively gave the Philippine government the full authority to pursue their claim in international courts.

To date, Malaysia continues to consistently reject Philippine calls to resolve the matter of Sabah's jurisdiction to the International Court of Justice.

The 2013 Standoff


On February 11, 2013, a group of approximately 100200 individuals, some of them armed, arrived by boat in Lahad Datu, Sabah from Simunul island, Tawi-Tawi of southern Philippines. They were sent by Jamalul Kiram III, one of the claimants to the throne of the Sultanate of Sulu. Their objective was to assert their unresolved territorial claim to North Borneo.

Scarborough Shoal
Other names: Scarborough Reef, Huangyan Island, Bajo de Masinloc or Panatag Shoal a group of islands, atolls, and reefs than a shoal, is located in the South China Sea. The nearest landmass is Palauig town, Zambales province, Luzon Island, at 221 kilometers, about 123 miles west of Subic Bay.

Scarborough Shoal
The Scarborough Shoal is not included within the territorial lines defined in the Treaty of Paris (1898),The Cession Treaty(1900), The 1930 Boundary Treaty, 1935 Constitution of the Philippines, Republic Act No. 3046 "Act to Define the Baselines of the Territorial Sea of the Philippines"(1961), or the 1987 Constitution of the Philippines.

Scarborough Shoal
Scarborough Shoal

Philippine Claim on the Scarborough Shoal


the Philippine DFA has asserted that the country exercised both effective occupation and effective jurisdiction over Bajo de Masinloc since its independence
erected flags in some islands and a lighthouse which it reported to the International Maritime Organization It also asserts that the Philippine and US Naval Forces have used it as impact range and that its DENR has conducted scientific, topographic and marine studies in the shoal, while Filipino fishermen regularly use it as fishing ground and have always considered it their own

Philippine Claim on the Scarborough Shoal


The DFA also claims that the name Bajo de Masinloc itself identifies the shoal as a particular political subdivision of the Philippine Province of Zambales, known as Masinloc. It also asserts that there is no indication that the international community has acquiesced to China's historical claim, and that the activity of fishing of private Chinese individuals, claimed to be a traditional exercise among these waters, does not constitute a sovereign act of the Chinese State.

Philippine Claim on the Scarborough Shoal


The Philippine government argues that since the legal basis of its claim is based on the international law on acquisition of sovereignty, the EEZ claim on the waters around Scarborough is different from the sovereignty exercised by the Philippines in the shoal. The Philippine government has proposed taking the dispute to the ITLOS as provided in UNCLOS, but the Chinese government has rejected this, insisting on bilateral discussions.

Philippine Claim on the Scarborough Shoal


Several official Philippine maps published by Spain and United States in 18th and 20th centuries show Scarborough Shoal as Philippine territory. The 2012 Scarborough Stand-off between PROC and RP has led the latter to seriously consider upgrading its maritime patrol and areal reconnaissance capability by acquiring Hamilton Class Cutters from the U.S. and negotiating for purchase of 12 fighter jets from South Korea for its small squadron.

What comprises a territory?


2. INTERNAL WATERS
These are bodies of water within the land boundaries of a State, or are closely linked to its land domain, such that they are considered as legally equivalent to national land includes: rivers, lakes and land-locked seas, canals, and polar regions.

Rivers
National rivers
Lie wholly within 1 States territorial domain from source to mouth Belongs exclusively to that State

Boundary Rivers
Separates 2 Different States Belongs to both States:
If river is navigable the boundary line is the middle of the navigable channel thalweg If the river is not navigable the boundary line is the midchannel

Rivers
Multinational rivers
Runs through several States Forms part of the territory of the States through which it passes EX.: Congo River, Mekong River

International rivers
navigable from the open sea, and which separate or pass through several States between their sources and mouths

Lakes and Land-locked Seas


If entirely enclosed by territory of 1 state: Part of that States territory If surrounded by territories of several States: Part of the surrounding States

Canals
Artificially constructed waterways GR: Belongs to the States territory XPN: Important Inter-Oceanic Canals governed by Special Regime Example (1) Suez Canal (2) Panama Canal

Historic waters
Waters considered internal only because of existence of a historic title, otherwise, should not have that charater EX.: Bay of Cancale in France

What comprises a territory?


3. MARITIME AND FLUVIAL DOMAIN
Zones of the Sea
Waters adjacent to the coasts of a State to a specified limit

1.Territorial Sea 2.Contiguous Zone 3.Exclusive Economic Zone 4.Continental Shelf

Territorial Sea
comprises in the marginal belt adjacent to the land area or the coast and includes generally the bays, gulfs and straights which do not have the character of historic waters (waters that are legally part of the internal waters of the State) portion of the open sea adjacent to the States shores, over which that State exercises jurisdictional control 1982 Convention of the Law of the Sea provides the maximum limit of 12 nautical miles from the baseline.

Territorial Sea
Basis necessity of self-defense Effect territorial supremacy over the territorial sea, exclusive enjoyment of fishing rights and other coastal rights BUT: Subject to the RIGHT OF INNOCENT PASSAGE (a foreign State may exercise its right of innocent passage) Q: When is passage innocent? A: When it is not prejudicial to the peace, good order, or security of the coastal State

Right of Innocent Passage


The right of continuous and expeditious navigation of a foreign shop through a States territorial sea for the purpose of traversing that sea without entering the internal waters or calling at a roadstead or port facility outside the internal waters, or proceeding to or from internal waters or a call at such roadstead or port facility

Extent and Limitations of Right of Innocent Passage


Extends to ALL ships merchant and warships Submarines must navigate on the surface and show their flag Nuclear-powered ships, ships carrying nuclear and dangerous substances must carry documents and observe special safety measures

The Baseline Theory/Method


Normal Baseline Method
Territorial sea is drawn from the low-water mark. Q: What is the low-water mark? A: The line on the shore reached by the sea at low tide. Otherwise known as the baseline.

The Baseline Theory/Method


Straight Baseline Method
A straight line is drawn across the sea, from headland to headland, or from island to island. That straight line then becomes the baseline from which the territorial sea is measured. Q: What happens to the waters inside the line? A: Considered internal waters. However, the baseline must not depart to any appreciable extent from the general direction of the coast

The Philippine Baseline (RA 9522)

Contiguous Zone
zone adjacent to the territorial sea, over which the coastal State may exercise such control as is necessary to:
Prevent infringement of its customs, fiscal, immigration or sanitary laws within its territory or territorial sea; Punish such infringement

extends to a maximum of 24 nautical miles from the baseline from which the territorial sea is measured.

Exclusive Economic Zone (EEZ)


a maximum zone of 200 nautical miles from the baseline from which the territorial sea is measured, over which, the coastal State exercises sovereign rights over all the economic resources of the sea, sea-bed and subsoil

Rights of other States in the EEZ


Freedom of navigation and overflight Freedom to lay submarine cables and pipelines Freedom to engage in other internationally lawful uses of the sea related to said functions

Continental Shelf
comprises the seabed and subsoil of the submarine areas that extend beyond the territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin; or to a distance of more than 200 nautical miles from the baselines form which the breadth of the territorial sea is measured where the outer edge of the continental shelf does not extend up to that distance

Rights of the Coastal State


sovereign rights for the purpose of exploring and exploiting its natural resources rights are exclusive if the State does not explore or exploit the continental shelf, no one may do so without its express consent

Archipelagic Doctrine
emphasizes the unity of land and waters by defining an archipelago either as a group of islands surrounded by waters or a body of waters studded with islands it requires that baselines be drawn by connecting the appropriate points of the outermost islands to encircle the islands within the archipelago waters on the landward side of the baselines regardless of breadth or dimensions are merely internal waters

Archipelagic Doctrine
an archipelago shall be regarded as a single unit, so that the waters around, between, and connecting the islands of the archipelago, irrespective of their breadth and dimensions, form part of the internal waters of the state, subject to its exclusive sovereignty

Rules Governing the Baselines


Such baselines should not depart radically from the general direction of the coast, or from the general configuration of the archipelago Within the baselines are included the main islands an area with a maximum water area to land area ratio of 9:1 Length of baselines shall not exceed 1nautical miles
XPN: Up to 3% of the total number of baselines may have a maximum length of 125 nautical miles

Effect of the Baselines


The waters inside the baselines are considered internal waters; The territorial sea, etc. are measured from such baselines; Archipelagic State exercises sovereign rights over all the waters enclosed by the baselines

Limitation Archipelagic Sealanes


Archipelagic State must designate sea and air route for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and adjacent territorial sea
Passage only for continuous, expeditious, and unobstructed transit between 1 part of the high seas or an EEX to another part of the high seas or an EEZ

The Philippine Archipelago


The Philippines adheres to the Archipelagic Doctrine Art. I, 1987 Constitution: The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.

Republic Act No. 9522


Amended RA 3046 as amended by RA 5446 Defined the archipelagic baselines of the Philippines The Philippine archipelago comprises of 101 baselines Regimes of Islands:
The Kalayaan Island Group as constituted under Presidential Decree No. 1596; and Bajo de Masinloc, also known as Scarborough Shoal

Scarborough Shoal

Kalayaan Island Group

Republic Act No. 9522

The regime of the High Seas


belongs to everyone and to no one both res commones and res nullius everyone may enjoy the following rights over the high seas: Navigation, Fishing, Scientific research, Mining, Laying of submarine cables or pipelines; and other human activities in the open sea and the ocean floor the freedoms extend to the air space above the high seas

Doctrine of Hot Pursuit


The pursuit of a foreign vessel undertaken by the coastal State which has good reason to believe that the ship has violated the laws and regulations of that State.

Requisites of DHP
Be commenced when the ship is within the pursuing States: Internal Waters; Territorial Sea; or Contiguous Zone May be continued outside such waters if the pursuit has not been interrupted Continuous and unabated

Requisites of DHP
Ceases as soon as the foreign ship enters the territorial sea of: Its own State; or That of a 3rd State Be undertaken by: Warships; or Military aircraft; or Other ships/aircraft cleared and identifiable as being in the government service and authorized to that effect

Aerial Domain
the airspace above the territorial and maritime domains of the State, to the limits of the atmosphere does not include the outer space

Air Space
the air space above the States terrestrial and maritime territory Every State has complete and exclusive sovereignty over the air space above its territory Convention on International Civil Aviation Territory includes terrestrial and maritime territory thus, includes air space above territorial sea NO right of innocent passage!

Air Space
the air space above the high seas is open to all aircraft, just as the high seas is accessible to ships of all States
the State whose aerial space is violated can take measures to protect itself, but it does not mean that States have an unlimited right to attack the intruding aircraft (intruding aircraft can be ordered either to leave the States air space or to land)

5 Air Freedoms
a. b. c. d. overflight without landing; landing for non-traffic purposes; put down traffic from state to airline; embark traffic destined for state of aircraft; and e. embark traffic or put down traffic to or from a third state

Paris Convention of 1919


Each nation has absolute sovereignty over the airspace overlying its territories and waters. A nation, therefore, has the right to deny entry and regulate flights (both foreign and domestic) into and through its airspace. Aircraft of contracting states are to be treated equally in the eyes of each nation's law.

Paris Convention of 1919


Each nation should apply its airspace rules equally to its own and foreign aircraft operating within that airspace, and make rules such that its sovereignty and security are respected while affording as much freedom of passage as possible to its own and other signatories' aircraft. Aircraft must be registered to a state, and they possess the nationality of the state in which they are registered.

The 1944 Chicago Convention on International Civil Aviation


It provides that every State has complete and exclusive sovereignty over the airspace above its territory. It states the principle that aircraft have the nationality of the State in which they are registered (notably, many rules governing aircraft, provided in the Convention, have been copied from the rules governing ships).

The 1944 Chicago Convention on International Civil Aviation


It makes a distinction between scheduled and unscheduled air services. No scheduled international air service of one State may be operated over or into the territory of another State, except with the special permission or other authorization of that State, and in accordance with the terms of such permission or authorization.

The 1944 Chicago Convention on International Civil Aviation


Aircraft not engaged in scheduled international air services have the right to make flights into or in transit non-stop across the territory of another State, and to make stops for non-traffic purposes without the necessity of obtaining prior permission of that State, subject, however, to the right of the State flown over to require landing, or to impose certain restrictions, such as routes and off-limit areas.

The 1944 Chicago Convention on International Civil Aviation


The Chicago Conventions applies only to civil aircraft, not to State aircraft which are used in military, customs and police services. State aircraft have no right to fly over the territory of another State or land thereon without authorization by special agreement or otherwise, and in accordance with the terms thereof.

Outer Space (Res Communes)


the space beyond the airspace surrounding the earth or beyond the national airspace, which is completely beyond the sovereignty of any State the moon and the other celestial bodies form part of the outer space (Moon Treaty of 1979) thus, it is not subject to national appropriation free for all exploration and use by all States and cannot be annexed by any State governed by a regime similar to that of the high seas

Outer Space Treaty


Outer Space is free for exploration and use by States; cannot be annexed by any State Its use and exploration must be carried out for the benefit of all countries and in accordance with international law Celestial bodies shall be used exclusively for peaceful purposes Nuclear weapons and weapons of mass destruction shall not be placed in orbit around the earth

The Boundary between the Air space and the Outer space
No accepted answer yet! There are different opinions:
That it should be near the lowest altitude (perigee) at which artificial earth satellites can remain in orbit without being destroyed by friction with the air around 190 km from earths surface Theoretical limit of air flights is 90 km above the earth Functional Approach: The legal regime governing space activities are based, not on a boundary line, but on the nature of the activities

Territory in International Law

END OF LECTURE