Bernas Public International Law – TERRITORY: LAND, AIR, OUTER SPACE Part 2

CHAPTER 7 TERRITORY: LAND, AIR, OUTER SPACE Part 2

EASTERN GREENLAND CASE

HELD:

A claim to sovereignty based not upon some particular act or title such as treaty or cession but merely upon continued display of authority, involves 2 elements each of which must be shown to exist:

(a) intention and will to act as sovereign, and

(b) some actual exercise or display of such authority.

Another circumstance which must be taken into account is the extent to which the sovereignty is also claimed by some other Power.

One of the peculiar features of the present case is that up to 1931, there was no claim by any Power other than Denmark to the sovereignty of Greenland.

2. Prescription—requires effective control and the object is not terra nullius

• The required length of effective control is longer than in occupation
• May 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

4. Conquest and Subjugation

• Conquest—taking possession of a territory through armed force
• It is necessary that the war had ended either by treaty or by indication that all resistance had been abandoned
• Now, conquest is proscribed by international law
• No territorial acquisition resulting from the use or threat of force shall be recognized as legal

5. Accretion and Avulsion—sovereignty by operation of nature

• Accretion—gradual increase of territory by the action of nature
• Avulsion—sudden change resulting for instance from the action of a volcano

Is Contiguity a Mode of Acquisition?

• It is impossible to show a rule of positive international law to the effect that islands situated outside the territorial waters should belong to a state from the fact that its territory forms part of the terra firma (Las Palmas Case)

Intertemporal Law

• Rules in effect at the time of the acquisition should be applied

AIRSPACE

• Each state has exclusive jurisdiction over the air space above its territory
• Sovereignty over airspace extends only until where outer space begins
• Consent for transit must be obtained from the subjacent nation
• State Aircraft—aircraft used in military, customs and police services
• 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. (Art. 3[a] of Chicago Convention on International Civil Aviation)
• Aircraft must not only not 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 (Lissitzyn)
• Civilian aircraft should never be attacked

OUTERSPACE

• Outer space, wherever that might be, and celestial bodies, are not susceptible to appropriation by any state
• The Moon and other celestial bodies shall be used by all State Parties to the Treaty exclusively for peaceful