TERRITORY

DEFINITION
- Territory as an element of a state means an area which a state has effective control.
Las Palmas case decided that control over territory is of the essence of state. Exact
boundaries might be uncertain, but there should be a definitive core over which
sovereignty is exercised. Acquisition of territory means acquisition of sovereignty over
territory. In Las Palmas case it was said that sovereignty over a portion of the surface
of the globe is the legal condition for the inclusion of such portion in the territory of any
particular state.
- Territory includes land, maritime areas, airspace and outerspace.
Modes of Acquisition of Sovereignty over Territory
1. Discovery and Occupation
- Occupation is the acquisition of terra nullius, means 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. In Western Sahara Case, the question is WON a territory
inhabited by an organized tribes was terra nullius. The ICJ answer that the territories
inhabited by tribes or peoples having SOCIAL and POLITICAL organization were not
regarded as terra nullius. The acquisition of sovereignty in this case was not by
occupation of terra nullius but by original title by agreements between the organized
tribe and the occupant. So it may be considered that the acquisition of the sovereignty
over western sahara was an actual cession of the territory or by agreements. In this
case, western sahara was inhabited by peoples that were SOCIALLY and POLITICALLY
organized into tribes and under chiefs competent to represent them.
- LAS PALMAS CASE, in this case, there is a dispute between Netherlands and US
over the island of Palmas. Netherlands said that they were exercising their sovereignty
on that island long time ago. US on the other hand said that it was ceded to the US by
virtue of treaty of Paris, that Spain has actually discover the island and it was defined in
the treaty of Paris. It was held in this case that title based on contiguity has no standing
in international law, and title by discovery is only an inchoate title and lastly if another
sovereign begins to exercise continuous and actual sovereignty, (and the arbitrator
required that the claim had to be open and public and with good title), 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.
- Effective control is relative and may depend on the nature of case, in the Eastern
Greenland Case there are two claimants to a territory, effective control is relative to the
strength of claims. It was said in this case that a claim to sovereignty based not upon
some particular act or title such as cession but merely upon continued display of
authority, involves two elements each of which must be show to exist: the intention and
will to act as sovereign and some actual exercise or display of such authority. With that
being said, Denmark has powerful claim that Norway, no power disputed the Danish

claim to sovereignty. Although Denmark had not colonised Eastern Greenland, its claim
and of exercise of state authority over the area during many centuries shows that it had
established title to it at the date when Norway made its claim.
2. Prescription
- Prescription requires effective control, the object of prescription is not terra nullius. The
required length of effective control is longer than occupation. Prescription might be
negated by a demonstrated lack of acquiescence by the prior occupant.
3. Cession
- Acquisition of territory through treaty. A treaty of cession which is imposed by a
conqueror is invalid. There may be a situation where what prevails is merely a de facto
regime.
4. Conquest
- Taking possession of territory through armed force. It is necessary that the war had
ended either by treaty or by indication that all resistance had been abandoned. The
conqueror must have the intention of acquiring the territory and not just of occupying it
temporarily. Today it is prohibited under international law. The territory of a state shall
not be the object of acquisition by another state resulting from threat or use of force.
5. Accretion and Avulsion
- Sovereignty by operation of nature. Accretion is the gradual increase of territory by the
action of nature; avulsion is a sudden change resulting for instance from the action of a
volcano.
Is contiguity a mode of acquisition?
- The Las Palmas case is argument against contiguity as a basis for sovereignty when it
says: it is impossible to show a rule of positive international law to the effect that island
situated outside the territorial waters should belong to a state from the face that its
territory forms part of terra firma.
Intertemporal Law
- Rules in effect at the time of the acquisition must be applied.
AIRSPACE
- Each state has exclusive jurisdiction over the air space above its territory; consent for
transit must be obtained from the subjacent nation.
- Chicago convention created the International Civil Aviation Organization, an agency of
UN and which prescribed rules for international civil aviation.
- Art. 1 states that contracting state recognize that every state has complete and
exclusive sovereignty over the airspace above its territory.

- Art. 2 defined the territory of states which is the land areas and territorial waters
adjacent thereto under the sovereignty, suzerainty, protection or mandate of such state.
- Art. 3 states that, the convention applies only to civil aircraft and not applicable to state
aircraft, which is aircraft that is used in military, customs and police services. No state
aircraft shall fly over the territory of another state without authorization or special
agreement or otherwise and in accordance with the terms thereof.
- Art. 4 said that each contracting states agrees not to use civil aviation that will defeat
the purpose of the convention.
- Art. 5 Right of non-schedule flight are, subject to the observance of the terms of this
convention, to make flights into or in transit non-stop across its territory and to make
stops for non-traffic purpose without obtaining prior permission and subject to the right
of the state flown over to require landing. Contracting state reserves the right, for a
reason of safety require aircraft desiring to proceed over regions which are inaccessible
or without adequate air navigation facilities to follow prescribed routes, or to obtain
permission for such flight. Aircraft engaged in the carriage of passengers, cargo, or mail
for remuneration or hire on other than scheduled international services, shall also,
subject to the provisions of ART. 7 have the privilege of taking on or discharging
passengers, cargo, or mail to the right of any state where such embarkation or
discharge takes place to impose such regulations, conditions or limitations as it may
considered desirable.
- Scheduled air services are stated in Art. 6 which declares that no schedule
international air service may be operated over or onto 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.
- Art 7 Cabotage. Right of the contracting parties to refuse permission to the aircraft of
other contracting States to take on in its territory passengers, mail and cargo destined
for another point within its territory.
Outer Space
- Air sovereignty extend to an unlimited extend, usque ad coelom. Sovereignty over air
space extends only until where outer space begins, but still it is not definite. Outer
Space and celestial bodies are not susceptible to appropriation by any state in 1967
treaty on the exploration and use of outer space.
- Use and exploration of outer space, mood and other celestial body, shall be carried out
for the benefit and interest of all countries. Its shall be free for exploration and use by all
state on a basis of equality and in accordance in international law and there shall be
free access to all areas of celestial bodies. There shall be freedom of scientific
investigation and states shall facilitate and encourage international co-operation in such
investigation
- Outer space is not subject to national appropriation by claim of sovereignty, by means
of occupation and other means

- State parties to the treaty, shall carry on activities in accordance with international law,
including charter of UN in the interest of maintaining peace and security and promoting
international cooperation.
- Nuclear Weapons are not allowed and any other kinds of weapon of mass destruction.
Installation of such in outer space is prohibited.
- Moon and other celestial bodies shall be used only for peaceful purposes.
- Establishment of military bases, installations and fortifications, testing of any type of
weapons and the conduct of military maneuvers are forbidden.
- Astronauts are regards as envoys of mankind in outer space and shall render to them
all possible assistance in the event of accident, distress, or emergency landing on the
territory of another state party or on the high seas. They must be returned to the state of
registry of their space vehicle safely.
-in carrying activities on outer space, the astronauts shall render all possible assistance
to another countrys astronauts. State parties to the treaty shall immediately inform the
other State parties to the treaty or the SG of UN of any phenomena they discover which
could constitute a danger to the life or health of astronauts.