OUTER SPACE A NO MAN TERRITORY: CONCEPTUAL DISCOURSE IN THE LIGHT OF STATE TERRITORY BY - DR. PANDHARE BALASAHEB DASHRATH
OUTER SPACE
A NO MAN TERRITORY: CONCEPTUAL DISCOURSE IN THE LIGHT OF STATE TERRITORY
INTRODUCTION
Power of the state under
international law to regulate or otherwise impact upon people, property and
circumstances reflects in the basic principles of state sovereignty, equality
of states and non-interference in domestic affairs of other states. Each state
has its own territorial Jurisdiction over its people property etc. each state
is sovereign in its territories. It can make civil or criminal law for its
people. This phenomenon is referred as territorial Jurisdiction of a state or
protective Jurisdiction. State Jurisdiction is the power of a state under
international law to govern persons and property by its municipal law; it
includes both the power to prescribe rules and power to enforce them. The
territorial sovereignty of subjacent state extends only up to a particular
height of the air space. The remaining part of the airspace is free and open. According
to NASA outer space to be the area beyond fifty miles i.e. about eighty
Kilometers above sea level, outer space is the area beyond the Karman line,
which is about sixty two miles above sea level. According to scientist the
inner boundary of outer space is 100+ 10 Kilometer above sea level. The
boundary between air and outer space is generally accepted as above 100
Kilometer because space craft cannot descend below this height, and aircraft
cannot climb at these altitudes. There is no definition given by the United
Nations as to where outer space begins.
1. MEANING
AND DEFINITION OF STATE TERRITORY
State territory has been defined as
portion of globe which is subjected to the sovereignty of a state. A state
without a territory is not possible, although the necessary territory may be
very small, as with Vatican City A wandering tribe, although it has a
government and is otherwise organized, is not a state until it has settled down
in a territory of its own.[1]
The importance of state territory is that it is the space with in which the
state exercises its supreme and normally exclusive authority. The exclusive
domain of a state with in its territory is basic to the international system The words “territorial sovereignty” implies
the authority and control exercised by a State within its boundaries over
individuals and property to the exclusion of other States. In the case of Island
of Palmas Arbitration[2]Max
Huber, the Arbitrator described territorial sovereignty in the following words.
“Sovereignty in the relation between
States signifies independence. Independence in regard to a portion of the globe
is the right to exercise therein, to the exclusion of any other State.”
In Western Sahara Case,[3]the
International Court of Justice gave a landmark opinion where it pointed out
that one of the characteristics of the existence of territorial sovereignty is
State activity on an adequate scale showing conclusively the exercise of
authority.
Article 2(4) of the UN
Charter requires all members to restrain in their international relations from
the threat or use of force against the territorial independence of any state.It
comprises land territory, territorial waters, national waters and air-space
over the territory and also the subsoil.
According to kelson: “the territory
of the state is a space with in which the acts of the state, and especially its
coercive acts are allowed by general international law to be carried out, a
space with in which the acts of a state may legally be performed.[4]
According to Savarlien: “the
territory of a state composed of all the land and water surface within its
boundaries and jurisdiction, all the earth and water below this surface, and
all the air above it.[5]
Oppenheim has defined the word “State Territory” as
“a portion of globe which is subjected to the sovereignty of a State. AState
without territory is not possible, although the necessary territory may be very
smallas with Vatican City. A wandering tribe, although it has a government and
is otherwiseorganized is not a State until it has settled down in a territory of
its own”.[6]
The importanceof State territory is that it is the space within which the State
exercises its supreme andnormally exclusive authority Power of the state under
international law to regulate or otherwise impact upon people, property and
circumstances and reflects the basic principles of state sovereignty, equality
of states and non-interference in domestic affairs. Each state has its own territorial
Jurisdiction over its people property etc. each state is sovereign in its
territories. it can make civil or criminal law for its people. it is called as
territorial Jurisdiction of a state or protective Jurisdiction.[7]
State Jurisdiction is the power of a state under international law to govern
persons and property by its municipal law, it includes both the power to
prescribe rules prescriptive Jurisdiction and power to enforce them enforcement
Jurisdiction[8]
2. TYPES OF
ACQUIRING AND LOSING STATE TERRITORY
The five common modes of acquiring
territory are occupation, prescription, accretion, cession and conquest.
2.1. OCCUPATION
Oppenheim has defined the term
“occupation” as the act of appropriation by a State by which it intentionally
acquires sovereignty over such territory as it is at the time not under the
sovereignty of any other State. It should be kept in mind that the subject
matter of occupation is terra nullius. Hence the territory which is a subject
matter of occupation should not belong to any State. Thus occupation consists
in establishing sovereignty over a territory not under the authority of any other
State whether newly discovered or an unlikely case abandoned by the State
formerly in control.[9]
Merely occupying territory does not amount to occupation because there should
be effective occupation.
To determine whether there is
effective occupation of a territory by a State it is necessary that two
essential conditions must be fulfilled. Firstly, possession and secondly,
administration. Once possession is established over a territory, the State
possessing the territory must establish some kind of administration over the
said territory.
In Eastern Greenland case
(Denmark Vs Norway),[10]It
was in clear cut terms held by the Permanent Court of International Justice
that foroccupation of a territory, the occupying State must fulfill two
conditions:
1. An intention or will to act as sovereign
2. Adequate exercise of display of sovereignty
The intention of the State
occupying the territory to act as sovereign is ascertained from the underlying
circumstances. The intention must be to assume permanent control of the
occupied territory. To make the occupation look real and as a consequence to transform
the inchoate title of the occupying State into a perfect title it is important
that the second condition also be fulfilled by the occupying State’s
legislative or executive measures affecting the occupied territory i.e. signing
treaties with other States concerning sovereignty of the said territory and the
fixing of the boundaries in respect of that territory.
In another case i.e. the Island
of Palmas (United States Vs Netherlands),[11]The
dispute wasbetween United States and the Netherlands wherein the United States
claimedsovereignty over the island on the basis of a treaty which it signed
with Spain in theyear 1898. Netherlands contented that it was in possession of
the island over a longperiod and also established sovereignty over the island.
Spain at no point of time hadoccupied the island although it had discovered the
island and since its title wasdefective, it had no right to transfer the island
to the United States.
However, both theStates decided to
refer the matter to arbitration. Arbitrator Huber ruled that a mere actof
discovery by one State is not sufficient to confer a title by occupation and
gave thedecision in favour of Netherlands on the ground that Netherlands not
only exercised a long, continuous and effective authority over the island but
also established contacts with the inhabitants of the island.
2.2. PRESCRIPTION
Another method of acquiring
territory is prescription. Where a State establishes occupation and exercise
control over a certain territory for a long duration of time, it is deemed that
the State exercises de-facto sovereignty over the territory then as a
consequence the said territory becomes a part of the territory of that State.[12]
In the words of J.G. Starke “Title by prescription i.e. acquisitive
prescription is the result of the peaceable exercise of de-facto sovereignty
for a long period over a territory subject to thesovereignty of another and
this may be as the consequence of immemorial exercise of suchsovereignty (i.e.,
for such period of time as in effect to extinguish memories of the exerciseof
sovereignty by a predecessor) or as the result of lengthy adverse possession
only”.[13] A
State may acquire territory by prescription only when some conditions are
satisfied such as:
1. A State may acquire some territory by prescription
only when it has not accepted the sovereignty of any other State over the said
territory.
2. Possession must be peaceful and
uninterrupted.
3. Possession should be in public.
4. Possession should be for a definite period
of time.
Some jurists are of the opinion
that international law does not recognize the acquisition of territory through
prescription but, another section of jurists are of the opinion that some
precedents exist in international law, precedents such as the case of Island of
Palmas Arbitration.
2.3. ACCRETION
Accretion is the name given for the
increase or decrease of land through new formations. Title by accretion occurs
when new territory is added mainly through natural causes or calamities (such
as earthquakes, volcanic eruptions, tsunami or even flash floods in
international rivers), to territory already under the sovereignty of the
acquiring State. In all such cases there is no need for any formal act or
assertion of title. For instance, an island may rise within the territorial waters
of a State then the State ipso facto acquires sovereignty over the new
formation.[14]
It is a customary rule of
international law that any enlargement or expansion of territory of a State as
a result of new formations, the State takes it ipso facto through accretion
without the State concerned taking any special step for the purpose of
extending its sovereignty.
2.4. CESSION
Through cession also territory may
be acquired. Cession of State territory is the transfer of sovereignty over
State territory by the State which owns the territory to another State. The
cession of a territory may be voluntary it may be made under compulsion as a
result of war fought successfully by the State to which the territory is to be
ceded. Cession is affected through a treaty or agreement between the ceding
State and the acquiring State. However, such treaties or agreements could be a
result of peaceful negotiations or war. Cession is considered valid only when
sovereignty of a territory is transferred to another State.
In the case of In re Berubari
Union and Exchange of Enclaves[15]The
Supreme Court of India observed: “…it
is an essential attribute of sovereigntythat a sovereign State can acquire
foreign territory and can, in case of necessity, cede apart of its territory in
favour of a sovereign State and this can be done in exercise of itstreaty
making power. Cession of national territory in law amounts to transfer ofsovereignty
over the said territory by the owner State in favour of another State….
Thispower, it may be added, is of course subject to the limitations which the
constitution of theState may either expressly or by implication impose in that
behalf.”
A similar view was taken by the
Supreme Court of India i.e. cession indisputably involves transfer of
sovereignty from one sovereign State to another, in the case of Union of
India v.Sudhansu Mozumdar,[16]
In another case i.e. Sugandha
Roy v. Union of India,[17]the
Calcutta High Court had to determine the question whether giving of Teen Bigha
(Zameen) to Bangladesh on lease in perpetuity under agreements between India
and Bangladesh of 1974 and 1982 amounted to cession of territory. The Calcutta
High Court held: “the implementation
of these two agreements would not involve cession of anyterritory to Bangladesh
in respect of Teen Bigha. There is no question of transfer ofsovereignty,
wholly or partially, in respect of the said area. What has merely been done
isto enable the Government of Bangladesh and its nationals to exercise certain
rights inrespect of the said area which otherwise they would not have been able
to enjoy”
2.5. DISMEMBERMENT
The dismemberment of a state takes
place when its territory becomes the territory of two or more new states.
Consequently, the predecessor state ceases to exist and the newly formed States
are regarded as its successors (Art.18 of Vienna Convention)
2.6. RETROCESSION
It is a process through which certain
territories are returned peacefully to its original State by executing special
agreement. The People's Republic of China and Great Britain have set a
precedent in negotiating the peaceful return of Hong Kong's sovereignty and
administration to China.[18]
The Joint Declaration on Hong Kong establishes the legal framework for
continued prosperity and stability in Hong Kong to the year 2047 under Chinese
leadership.
The Joint Declaration states:
The Hong Kong Special Administrative
Region Government shall maintain the rights and freedoms as provided for by the
laws previously in force in Hong Kong, including freedom of speech, of the
press, of correspondence, of travel, of movement, of strike, of demonstration,
of choice of occupation, of academic research, of belief, inviolability of the
home, the freedom to marry and the right to raise a family freely.[19]
For the purpose of exercising State
Jurisdiction customary international law recognizes the state territory as
follows
5.1. LAND TERRITORY
It consists of land within its
boundaries. A boundary is a line on the surface of the earth which separates
the territory of one state from that of other or from un appropriated
territory. Boundaries may be of two kinds, Natural boundaries, such as rivers,
arrange of rocks or mountains, deserts or forest and Artificial boundaries,
which are constructed for the purpose of dividing territories.[20]
They may consist of walls pillars, poles and trenches etc. Boundaries may be
demarked either by the States concerned themselves or by the international
agencies. Demarcation of Boundary in 199l between Iraq and Kuwait by
iraq-kuwait Boundary Demarcation Commission set up by the Security Council of
the UN.[21]
5.2. NATIONAL WATERS
It includes waters in its rivers together with their mouths, canals, ports, harbors and in some of
its gulfs and bays it was also referred as internal
water. Rivers are of four kinds. Those who flow from its source to its mouth,
within the boundaries of one and the same state called as national rivers.
Rivers which separate two different states from each other called as Boundary
Rivers. Rivers which runs successively through two or more states and therefore
called as multilateral or plurilateral or non-national rivers.[22]
They are owned by one or more states. Fourthly that plurilateral river which
are navigable from the open sea and which, though belonging to the territories
of the different states concerned, are nevertheless named international rivers.[23]
For such rivers there is a rule of international law that a state cannot alter
the natural flow of the river.
5.3. TERRITORIAL SEA
As per United Nations convention on
the law of sea 1982 territorial sea is a belt of coastal waters extending at
most 12 nautical miles 22.2 kilometers from the baseline of a costal state, it
is regarded as a sovereign territory of a state, although foreign ships are
allowed innocent passage through it.[24]
This sovereignty also extends to the airspace over and seabed below. Adjustment
of these boundaries is called as maritime delimitation. If it overlaps with
other states territorial sea the border is taken as the median point between
the states baseline. Unless a state in question agree otherwise. A state can
also choose to claim a smaller territorial sea.[25]
5.4. THE CONTIGUOUS ZONE
The contiguous zone is a band of
water extending further from the outer edge of the territorial sea to up to 24
nautical miles 44.4 kilometers from the baseline, within which a state can
exert limited control to prevent and punish infringements of its customs,
fiscal, immigration, and sanitary law with in its territory or territorial sea[26]
5.5. EXCLUSIVE ECONOMIC ZONE
An exclusive economic zone is a sea
zone prescribed by the 1982 United Nations Convention on the law of Sea over
which a state has special rights regarding the exploration and use of marine
resources, including energy production from water and wind. From baseline to
two hundred nautical miles [three seventy kilometers from its cost][27]
The difference between the
territorial sea and the exclusive economic zone is that the first confers full
sovereignty over the waters, whereas the second is merely a sovereign right
which refers to the sea. The surface waters are international waters. The law
relating to this is codified by the United Nations convention on the
Territorial Sea and Contiguous Zone, 1958.[28]
The difference between the territorial sea and the exclusive economic zone is
that the first confers full sovereignty over the waters, whereas the second is
merely a sovereign right which refers to the sea. The surface waters are
international waters. The law relating to this is codified by the United
Nations convention on the Territorial Sea and Contiguous Zone, 1958, which came
into force from Ten Sep 1964. The Parliament of India al so enacted an act
named as Territorial Waters, Continental Shelf, Exclusive Economic Zone and
Other Maritime Zones Act, 1970 to implement this convention and convention on
law relating to Sea.[29]
5.6. AIR AND OUTER SPACE
1.6.1.
AIR SPACE
Air space means all space in which
man made instruments- air crafts weather controlled or not, can be in operation
at any given time. There were five theories in connection with the questions of
the sovereignty of a state over the superjacent air space. The subjacent
territorial state has absolute sovereignty over the whole space of atmosphere
above its territory to unlimited height.[30]
The air space is absolutely free and open being analogous to high seas. The
territorial sovereignty of subjacent state extends only up to a particular
height of the air space. The remaining part of the airspace is free and open. A
subjacent state has a right to impose regulations, to protect its interest, on
passing foreign aircrafts even above the air belt though such air space beyond
the belt is not subject to sovereignty of the state[31]
The sovereignty of the subjacent
state extends to the unlimited air space but the other State has a servitude or
right of innocent passage for their civil aircrafts. After the outbreak of
First World War the question of sovereignty over air space underwent a radical
change. The only theory that was universally accepted was the first theory,
which conceded sovereignty to an unlimited height over the subjacent air space.[32]
In 1919, the conference of Paris
adopted the convention for the regulation of aerial Navigation. This convention
accepted the following four broad principles.[33]
·
The subjacent state has absolute sovereignty over its
air space in peace time,
·
Freedom of innocent passage is to be accepted to
aircrafts of the parties to the convention, but regular international Airlines
have no such right unless the subjacent territory gives its consent.
·
No aircraft is to be registered in a country unless it
belongs only to the nationals of that country
·
No aircrafts can be registered in more than one
country
Chicago Conference, 1944,[34]
certain freedoms were granted to airlines of each state, modern state use to
establish closed air space for security purpose. Air defense identification
zones reserved for the aircrafts of subjacent state only called as ‘Air
corridors’
Euro-control an International agency
for common air traffic control service for upper air space established by six
states in western Europe including UK.[35]
1.6.2.
OUTER SPACE
According to NASA outer space to be
the area beyond fifty miles about eighty Kilometers above sea level, outer
space is the area beyond the Karman line, which is about sixty two miles above
sea level[36]
According to scientist the inner boundary of outer space is 100+ 10 Kilometer
above sea level. The boundary between air and outer space is generally accepted
as above 100 Kilometer because space craft cannot descend below this height,
and aircraft cannot climb at these altitudes.[37]
There is no definition given by the United Nations as to where outer space
begins.
1.6.3.
LAW RELATING TO OUTER SPACE
The initial phase of development
started in 1957, when the Soviet Union launched its first satellite (Sputnik).
On 13th December, 1958, the GA of the UN passed a resolution, recognizing "the common interest of mankind in
outer space" and "that
it is the common aim that outer space should be used for peaceful purposes
only."[38]
"Declaration of Legal Principles Governing the Activities of States in the
Exploration and use of Outer Space" was unanimously adopted by the General
Assembly 13th December, 1963
The Agreement on the Rescue of
Astronauts, the Return of Astronauts and the Return of Objects Launched into
Outer Space, 1967
1.6.3.1.
THE OUTER SPACE TREATY, 1967
Outer space, which includes the moon
and other celestial bodies, shall be free for exploration by all States without
any discrimination. There shall be freedom of scientific research. Outer space
is not subject to national appropriation by claim of sovereignty, by means of
occupation, or by a other means. State parties to the treaty undertake not to
place in orbit around the earth objects carrying nuclear weapons or weapons of
mass destruction, install such weapons on celestial bodies or station such
weapons in outer space.[39]
The moon and other celestial bodies
shall be used by all States parties to the treaty exclusively for peaceful purposes.
State parties to the treaty shall treat astronauts as envoys of mankind in
outer space, provide all possible assistance in the event of accident, distress
or emergency landing on the territory of another State Party or on the high
seas. When astronauts make such a landing they shall be safely and promptly
returned to the state of registry of their space vehicle. The establishment of
military bases, installations and fortifications, the testing of any type of
weapon, conducting of military exercises on celestial bodies shall be
forbidden. State Parties to the Treaty shall bear international responsibility
for national activities in outer space.[40]
Each State Party to the Treaty that
launches or procures the launching of an object in outer space, the moon and
other celestial bodies and each State Party from whose territory or facility an
object is launched, is internationally liable for damage to another state party
by such object or its component parts on the earth, in air space or in outer
space. A State Party which launches an object in outer space shall retain
jurisdiction and control over such object and personnel while in outer space
including celestial bodies.[41]
·
The
Convention on International Liability for Damage caused by Space Objects -1971
·
The
Convention on Registration of Objects Launched into Outer space – 1974
·
The
Agreement Governing the Activities of States on the Moon and other Celestial
Bodies – 1979
·
Vienna
Convention on the Exploration and Peaceful Uses of Outer-space (UNISPACE II)
AND (UNISPACE III)
CONCLUSION
In international law, responsibility
pertains to a State which commits an internationally wrongful act against
another, giving rise to the duty to give reparation. The wrongful act that is
attributable to a State, committed by its agencies or officials or in the
exercise of its authority, constitutes a breach of international obligation
that is binding at the time the act is committed. Such a classic formulation of
international responsibility is premised on inter se relations of States; an
act or omission of one State in breach of an obligation defined by
international custom or convention, which it owes to another State. However,
progress in the theory and practice of international responsibility has gone beyond
the scope of bilateral relations. The developments towards the
consolidation of the institutions making up the International Community of
States as a whole have broadened in significant scale on the basis of territory.
*
Associate Professor at AJMVP’S New Law College, Ahmednagar and Recognized Ph.D.
Research Guide at PES Modern Law College, Pune affiliated to Savitribai Phule
Pune University Pune.
[1]Oppenheim’s International Law (eds. R. Y. Jennings and A. D. Watts), 9th edn, London, 1992,
chapter 5
[4]S. P. Sharma, Territorial
Acquisition, Disputes and International Law, The Hague, 1997
[5] Ibid p. 231
[6] Supra Note 1, p. 236
[7]M. Akehurst, ‘Jurisdiction in International Law’, 46 BYIL, 1972–3,
p. 145
[8]F. A. Mann, ‘The Doctrine of Jurisdiction in International Law’,
111 HR, 1964, p. 1
[9]N. Hill, Claims to
Territory in International Law and Relations, London, 1945
[12] Supra Note 7, p. 136
[13] J.G. Strake, Introduction to International Law,
(10th Ed. 1994), p. 232
[14] Ibid p. 244
[18]R. Y. Jennings, The
Acquisition of Territory in International Law, Manchester, 1963
[19]D. P. O’Connell, State
Succession in Municipal Law and International Law, Cambridge, 2 vols.,
1967
[20]N. Hill, Claims to
Territory in International Law and Relations, London, 1945
[21] Ibid, p.122
[22]Brown, International Law of the Sea, vol. I, chapter 5
[23]O’Connell, International
Law of the Sea, vol. I, chapter 9
[24]Churchill and Lowe, Law of the Sea, pp. 65
[25]Article 5(1) of the 1958 Convention on the Territorial Sea and
article 8(1) of the 1982 Convention.
[26]W. M. Reisman and G. S. Westerman, Straight Baselines in International Maritime Boundary Delimitation,
New York, 1992
[27]J. A. Roach and R. W. Smith, United States Responses to Excessive Maritime Claims, 2nd edn,
The Hague, 1996
[28] Ibid, p.22
[29] Shilpa Jain: Introduction to Public International Law
(EBC 2016)
[30]C. Q. Christol, The Modern International Law of Outer Space,
New York, 1982
[31]S. Gorove, ‘International Space Law
in Perspective’, 181 HR, 1983, p. 349
[32]B. Cheng, ‘The 1967 Space Treaty’, Journal de Droit International, 1968, p. 532
[33]Cheng, ‘The Legal Status of Outer Space’, Journal of Space Law, 1983, p. 89
[34] V.K. Ahuja, Public International
Law (Lexis Nexus 2016)
[35]Cheng, ‘The UN and the Development of International Law Relating
to Outer Space’, 16 Thesaurus
Acroasium, Thessaloniki, 1990, p. 49,
[37] S.K. Verma: An introduction to Public International
Law ( Prentice Hall 1998)
[38]N. Matte, Treatise on
Air– Aeronautical Law, Montreal, 1981, chapters 4 and 5
[39] Ibid p. 31
[40]Cheng, ‘The Moon Treaty’, 33 Current Legal Problems, 1980, p. 213
[41] Ibid p. 45