Spatial Dimensions of State Activities

3.5.1 General

Traditional int’l law:

Physical dimension of state activity а earth, portions of the sea (territorial waters – small portion of sea around each area of land), and the air (up to the stars, usque ad sidera)

Rules

· Whoever possessed a territory and exercised actual control over it acquired legal title

· For areas subject to no one (terrae nullius) mere discovery was insufficient to assert sovereignty; State needed to display sovereignty and intend to wield it

As a result, eventually whole globe became subject to one State’s jurisdiction or another. This system heavily favoured bigger states and promoted individualism in int’l community.

Exception – High Seas

· Since 17th Century, there were seen as a thing belonging to everyone (res communis omnium).

· Every state could sail it ships or use the high seas as it pleased so long as it did not hamper anyone else’s enjoyment.

· This was not a regime about community, it was one to allow each state to pursue its own purposes and its own interests.

After WWII – 1950s:

· Discovery that seabed off the coast of some States contained important resources

· Technology allowed greater exploitation of fishing resources on the high seas

· Int’l community preferred a regime to organize access to these resources on the basis of individualistic free choice and competition, which favoured larger, developed states

· Whole development of law of the sea was dictated by sovereignty, nationalism, and laissez-faire attitude

· Developing countries convinced int’l community to adopt community-oriented principles for the common sharing and exploitation of resources only for the seabed and ocean floor/subsoil. This was seen as the common heritage of mankind, but this has proved to be quite useless because technology is too expensive to develop these resources

3.5.2 Territory

Territory – that portion of land that is subject to the sovereign authority of a state.

· Today, there is no territory that is not subject to a sovereign power.

· States can exercise all their sovereign powers over their territories.

Exception а Antarctic – claims to territorial sovereignty by adjacent and discovering states are suspended by treaty

Island of Palmas, 1928 – “sovereignty in relation to a portion of the surface of the globe is the legal condition necessary for the inclusion of such portion in the territory of any particular case.”

a) Acquisition of Territory

Principal modes of acquiring territory:

1. Occupation of land belonging to no one

2. Cession by treaty, followed by effective peaceful transfer of territory

3. Conquest (no longer admissible, due to Declaration on Friendly Relations 1970, codifying a new principle of int’l law)

4. Accretion – physical process whereby new land is formed closed to existing land (e.g. new island at a river mouth)

b) Delimitation of boundaries: the uti possidetis doctrine

3.5.3 Sea

Sea has gradually been divided up into sections or areas, each with different legal status and creating different rights and obligations upon States.

1982 Convention on the Law of Sea, entered into force 1994 – largely replaces various codification conferences conventions of 1958.

Territorial Sea of States

Ш the waters surrounding a State’s territory and including its bays, gulfs, & straits

Where do you measure the width of the territorial sea from – how do you define baselines?

· Lots of disputes about its width

· Rule used to be that width was three nautical miles – the effective range of shore artillery

· 1982 Convention, Art. 3 – States have a right to establish a breadth of their territorial sea up to limit not exceeding 12 nautical miles from the baselines

· Art. 5 of 1982 Law of Sea Convention – reflects a customary rules – “normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts official recognized by the coastal state”

· General principle of ‘low-water line’ derogated from in case of States whose coast is deeply indented and cut into or states which have fringe of islands off coast

o Article 7.1 – for such states, method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured

Criteria for drawing straight baselines

· Must not depart to any appreciable extent from the general direction of coast

· Sea areas lying within the lines must be sufficiently closed linked to the land domain to be subject to the regime of internal waters

· Account must be taken of … economic interests peculiar to the region concerned

· The system in question may not be applied by a state in such a manner as to cut off the territorial sea of another State from the high seas or an exclusive economic zone.

States with Bays

· Art. 10.2 - Bay defined

· Art. 10.4 & 10.5

o If the distance between the low-water marks of the natural entrance points of the bay does not exceed 24 nautical miles, a closing line may be drawn between these two low-water marks, and the marks enclosed thereby shall be considered internal waters

o If bay’s entrance exceeds 24 nautical miles, a straight baseline of 24 nautical miles will be drawn so as to enclose maximum area of water possible with a line of such length

· Within the territorial sea, state enjoys full sovereignty, subject to right of innocent passage of foreign merchant ships and warships.

· Foreign ships can pass without prior notification or authorization, provided they do not act prejudicially to coastal state.

· Coastal state many not exercise criminal jurisdiction over offences committed on board ships within territorial waters, except under conditions in art. 27.1

Internal waters

· subject to full and exclusive sovereignty of State, no right of innocent passage to other states

Contiguous zones

Ш Goes beyond the territorial sea and extend up to 24 nautical miles from baseline

· In this zone, state may prevent and punish infringement of its customs, fiscal, immigration or sanitary requirements within its territory or its territorial sea (Art. 33).

Exclusive economic zones

Ш Area beyond and adjacent to territorial sea, extends 200 miles.

· Has been gradually established due to discovery of important fishing and mineral resources off coast

· Coastal state enjoys sovereignty in some specific matters – only for purpose of exploring, exploiting, conserving, and managing natural resources.

· It has jurisdiction over artificial islands, installations and infrastructures, marine scientific research, and the protection and preservation of marine environment.

Continental Shelf

Ш Part of underwater land - natural prolongation of State’s land territory into sea, before it falls away into ocean depths. Shelf normally covered with relatively shallow water, Length varies depending on geography

· Art. 76.1 sets outer limit of continental shelf up to 200 nautical miles from the baselines from which the breadth of territorial sea is measured

· Coastal state has sovereign rights to specific activities – exploration and exploitation of natural resources of shelf (oil and fishing resources)

· North Sea Continental Shelf case, ICJ – rights in continental shelf are an inherent right of state sovereignty over land

· Art. 80 – coastal state may construct and maintain installations for exploitation of shelf and establish safety zones around these installations up to 500 meters.

Delimitation of continental shelf between opposite or adjacent states has given rise to many disputes:

· Principle of equidistance (measure equal distance from nearest points of baselines from which breadth of territorial sea is measured) has been found to lead to inequitable solutions а North Sea Continental Shelf case (Germany v. NL & DK)

High Seas

Ш Beyond contiguous zones and excepting the exclusive economic zones, waters belong to high seas. They are res communis omnium, free for every state to use.

· Each state has exclusive jurisdiction over its ships.

· A state may exercise jurisdiction over foreign ships, using its warships, in some circumstances:

o It may approach and board merchant ships to ascertain their nationality, or to establish whether they engage in piracy, slaving, unauthorized broadcasting, etc.

o It may arrest and seize any ship engaging in piracy or slave trading and bring those individuals to trial

o It may pursue and seize a ship suspected of infringing its laws in its waters – right of hot pursuit must be initiated in its waters and ship pursued into high seas. Pursuit must be un-interrupted and cease as soon as pursued ship is out of high seas and into territorial waters of another state.

3.5.4 The International Seabed and the Concept of the Common Heritage of Mankind

International seabed

Ш Soil and subsoil under high seas

· Has been estimated to be rich in minerals, today seems that those were probably over-estimates, and it’s also not economically feasible to exploit these resources

· At the time developing countries advocated for a new community-oriented principle to govern the exploitation of undersea wealth

· 1967 Maltese Ambassador – Arvid Pardo – launched notion of “common heritage of mankind”, world community faced a choice between rampant individualism and community management of global resources

· Common heritage of mankind concept:

o Absence of right of appropriation

o Duty to exploit resources in the interest of mankind in such a way as to benefit all, including developing countries

o Obligation to explore and exploit for peaceful purposes only

o Duty to pay due regard to scientific research

o Duty duly to protect the environment

· Art. 136 of Law of Sea Convention reflects this principle

· International Sea-bed Authority was provided for in Convention as organ to administer resources collectively

· Industrialized countries firmly opposed to new concepts, because

o It did not ensure access to seabed minerals

o Majority voting did not enable industrialized states which have to bear brunt of costly research and exploitation to have a proportionate role in decision-making

o The legal regime of transfer of technology by industrialized countries to the Enterprise and developing countries would be contrary to free play of market forces and penalize developed countries

· 1994 – states reached an agreement on this impasse:

o The Authority shall be set up gradually, and its cost for member states kept at a minimum

o There is no longer obligation for States to finance the Enterprise

o The Enterprise is now subject to market forces – both its funding and operations are subordinate to the cost-effectiveness criteria

o In conformity with new voting system, the Authority’s Council can no longer impose its decision on matters that States deem contrary to their interests

o There is no longer obligation to transfer technology from developed countries to Enterprise or developing countries

· Although notion of common heritage of mankind has not been rejected, in practice the major benefits that would have accrued to developing countries have been severely watered down, and is thus not such a radical concept anymore.

3.5.5 Air

Ш At present, each state enjoys exclusive sovereignty over airspace above its territory and territorial sea

· Traditionally, states have claimed sovereignty over whole of airspace

· No foreign state may fly through without permission or authorization

· Over-flight by foreign aircraft allowed due to bilateral and multilateral agreements

· 1944 Chicago Convention on International Civil Aviation – specific rules for civil over-flight

3.5.6 Outer Space

Ш Outer space – starts between 90 and 100 miles above earth

· Theoretically, until rockets and satellites were first launched, each state had sovereign rights over its own portion of outer space

· However, once rockets and satellites possible, consensus emerged that states (US & USSR) were not required to ask for the authorization of the States above whose territory the satellites were orbiting

· As a consequence, outer space immediately considered open to everybody for exploration and use

· Through UN Resolutions, Declarations, Treaties, basic legal principles re space law established:

o It is not subject to national appropriation by claim of sovereignty, but means of use or occupation, or by another means

o Its exploration and use must be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development and shall be the province of mankind (Art. 1 of 1967 Treaty and Article 4 of 1979 Treaty)

o It must not be used to put into orbit around the earth, or station in any other manner, objects carrying nuclear weapons or other weapons of mass destruction

· Space was subject to regime akin to high seas, except for provision on no nuclear weapons

· This is not a legal regime for common interests of mankind, it’s still a state-interest driven model. Major powers use their space exploration powers primarily for their own good.

· 1979 Treaty on Moon and other Celestial Bodies (to a large extent become customary law)

o provides that all substances originating from the moon and other celestial bodies are to be regarded as natural resources belonging to the common heritage of mankind

o Question of how to share benefits from exploitation of resources in outer space was left unresolved