Sovereignty and Jurisdiction in Airspace and Outer Space

Legal Criteria for Spatial Delimitation

Gbenga Oduntan

• Publisher: Routledge
• Year: 2011
• ISBN:
  9781136662898
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Sovereignty and jurisdiction are legal doctrines of a complex nature, which have been subject to differing interpretations by scholars in legal literature. The tridimensionality of state territory recognised under customary international law subsists until the present but there are other territories that do not or cannot belong to any state or political entity which also must be accounted for in legal theory. The issues surrounding sovereignty and jurisdiction are likely to become ever more pressing as globalisation, growing pressure on resources and the need for energy and national security become acute, and the resolution of special delimitation disputes seems likely to become a vital question in the twenty-first century. As a result of the fast pace of technological developments in air and space activities and the massive increases in air transportation, satellite communications and space exploration, the need for scholars and practitioners to sharpen their appreciation of the legal and political issues becomes crucial.

This book will focus primarily on the issues of sovereignty jurisdiction and control in airspace and outer space and their effects on public and private activities, but it will also look at related issues pertaining to the Seas and Antarctica. Commercial exploitation, resource control and the international regime regulating contractual obligations in relation to transportation of goods and services over all forms of territory will be examined to the extent that they are necessary to explain jurisdictional rights and duties over territory. Older problems of international law such as crimes in the air and airspace trespass are treated along with newer developments such as space tourism as well as growing demand for private ownership and involvement in outer space exploitation.

The book goes on to consider the distinction between airspace and outer space and puts forward legal criteria which would allow for the resolution of the spatial delimitation dispute. These criteria would determine where in spatial terms the exclusive sovereignty of airspace ends and where outer space – the province of all mankind – begins, and contribute to the jurisprudence of territorial sovereignty and jurisdiction.

1 Preliminary considerations: sovereignty, jurisdiction and control in international law

1.1 Territory and Territorial Acquisition in International Law and Relations

The territorium is the sum of the lands within the boundaries of a community [civitatis]; which some say is so named because the magistrate of a place has the right of terrifying [terrendi] that is exercising jurisdiction, within its boundaries.¹⁸

Territory is both a political and legal term and concerns the relation between sovereignty, land and people.¹⁹ Territory derives its roots from the Latin terra meaning land or terrain and the compound territorium, which, by the prefix orium, denotes “the place of something” or surrounding something. The etymology of territorium according to the Oxford English Dictionary is “unsettled”. It is described as:

usually taken as a deriv[ative]: of terra earth, land (to which it was certainly referred in popular L[atin]. When altered to terratorium); but the original form [territorium] has suggested derivation from terrere to frighten.²⁰

Territory is, therefore, both spatial and locational in referring to “the place surrounding an area”.²¹ In this sense, we can envisage that the location of such an “area”, at least in our modern world, can indeed be maritime, aerial or celestial as long as it is a space, place or sphere of physical activities capable of being occupied by use of or for passage. It is interesting that territory has in time, however, acquired a popular meaning of a “bounded space”. One of the problems that emanate from such a view has been adduced to by the query “what is space” and how is it bounded?²² It is for this reason that one author concluded quite persuasively that:

A properly critical political theory of territory needs to investigate the quantification of space and the role of calculative mechanisms in the commanding of territory, and the establishment of borders.²³

René Descartes also helpfully suggested that geometry is the science that best allows us to conceptualise spatial territory. Analytical geometry and the entire gamut of scientific methodology of spatial measurement have indeed provided the techniques to map out the various terrains known to mankind including deserts, arctic, polar and even celestial bodies and the geostationary orbit.²⁴ It is for this reason that this book proceeds from the a priori position that determination of territorial extents by objectively verifiable criteria is both an attribute of human instinct and a legally obligatory act. It makes good policy in both the domestic and international legal orders for there to be distinct territories and a fundamental understanding of the juridical nature of all forms of physical and extraterrestrial territories. A corollary position of this view is that, wherever possible, the precise distinction in terms of delimitation and demarcation of all territories must always be attempted even if not achieved.

There is a total of 351 separate geographic entities in the world today. This includes 194 independent states;²⁵ several dependencies and areas of special sovereignty, such as the Australian – Ashmore and Cartier Islands, Christmas Island, Cocos (Keeling) Islands, Coral Sea Islands, Heard Island, the McDonald Islands; and areas of indeterminate sovereignty, such as Antarctica, Gaza Strip, Paracel Islands, Spratly Islands, West Bank and Western Sahara.²⁶ The land boundaries in the world total add up to approximately 251,060 km (and that is where effort has been expended to prevent the counting of shared boundaries twice). Most states share boundaries with multiple land or maritime neighbours.²⁷ Nearly a quarter of all independent states are landlocked. Liechtenstein and Uzbekistan are, in fact, doubly landlocked (countries that are not only landlocked but are completely surrounded by other landlocked countries). Africa has two interesting examples – Zambia, which is completely surrounded by eight states (Angola, Botswana, Congo DRC, Malawi, Mozambique, Namibia, Tanzania and Zimbabwe), and Lesotho, which is not only landlocked but country locked as it is completely surrounded by South Africa.²⁸ Virtually all states have access naturally to their airspace and a potential direct access to outer space depending only on their level of rocket technological acquisition or interest in procurement of launches through other states’ vessels.

Territory may be acquired by many means and there is much truth in the statement of Brownlie that the student of the materials on the acquisition of title to territory is apt to erroneously feel that he is studying the history of a class of disputes instances of which are unlikely to arise in future. He wrote:

[I]n one sense at least law is history and the lawyer’s appreciation of the meaning of rules relating to acquisition of territory and of the manner of their application in historical cases will be rendered more keen by a knowledge of the historical development of the law … In other words, the principles developed in relation to the normal territorial areas provide useful analogies for those engaged in building a legal regime for any international space.²⁹

In reality, there is a continuing relevance of the classical modes of territorial acquisition and the entire question of modes of territorial acquisition is of current legal significance and will remain so for a considerable length of time. A cursory glance at the work of the International Court of Justice in the last ten years alone will reveal that the Court is occupied with disputes arising out of territorial questions. Many of these are as a result of controversy over the applicable root of title and can only be resolved with reference to them.³⁰ It would appear that a surprising proportion of frontiers taken for granted as settled are actually dormant disputes waiting to erupt. States may at any time be called on to prove territorial title or defend their territorial sovereignty. The need to do so may, in fact, be on the increase in the 21st century for many reasons. These include conflict over natural and energy resources,³¹ challenge of inchoate titles and the consequences of rapid and previously unimaginable changes in technological advancements. Developments in shipping technology, aviation and space technology continue to break down zones of inaccessibility to mankind and put valuable resources within the reach of corporations and businesses. All these make it necessary for the modern-day lawyer (even the air and space lawyer) and decision maker to remain familiar with the issues and nuances surrounding the legal modes of territorial acquisition including, of course, the possible causes of loss of sovereignty over territory.

Even the ancient concept of terra nullius (i.e. land belonging to no one), which arguably can no longer rear its head in modern times having been exposed as a political tool for acquisition of territory by stealth in Africa and Asia by the European powers, somewhat unfortunately remains relevant in legal analysis as root of previous titles and in the resolution of disputes between states.³²

Territory may be transferred or acquired in one of several ways but the methods are now restricted by present international law. Some methods are now of completely historical interest and some that are still employed are quite controversial and are reminiscent of the “old international law”.

Occupation is one means of territory acquisition. Under this method, a territory that is not controlled by another state is taken over by way of occupation. Up to the 19th century, Europeans denied statehood to territories outside Europe with a few exceptions. Thus, if they did not have the military power to adequately defend themselves, they could be subjugated and their territory occupied by the first European power that moves in that direction. The Permanent Court of International Justice later laid down the constituent ingredients of effective occupation in the Eastern Greenland Case as (i) the intention to act as sovereign and (ii) adequate exercise of display of sovereignty.³³ An issue of current relevance regarding this mode of acquisition relates to the contiguity theory advanced by Canada and the USA to claim sectors in the Arctic. In 2008 Russia dramatically staked a claim to parts of the Arctic by planting a flag at the bottom of the sea. The penchant for flag planting by states continued in 2010 when China staked its flag at the bottom of the contentious South China Sea. This theory as well as that of historical ties has traditionally been used to explain situations in which it is not clear exactly how much territory was subject to occupation. It is, however, clear that the theory as well as the maintenance of sector claims over an area increasingly regarded as international commons remains controversial.

Cession is where the possession of certain territory as a sovereign right is conferred by agreement between intending grantor and grantee. Cession may take the form of a treaty, sale, gift exchange or grant provided sovereignty is transferred. A ceding state cannot give more than it has; defects in title as well as servitudes and other rights survive the cession.³⁴ Spain ceded the Caroline Island to Germany in 1899; France ceded Louisiana to USA in 1803 for 60 million francs and Lombardy to Italy in 1859 gratuitously. In 1902 and 1926 Britain made interval transfers of Ugandan territory to Kenya, then both under British rule. There is no reason to believe that this form of territorial transfer will not remain relevant in the 21st century. Indeed, the right to transfer territory is an attribute of sovereignty. It is, however, clear that if such cession be acquired by duress or force, other rules of international law will operate to nullify it.

Accretion, erosion and avulsion refer to the increase of territory through geographical formations. Thus, in the simple case, deposits on a seacoast may result in an extension of sovereignty. In the case of avulsion, the change comes through sudden, forcible and significant changes in river courses. For this class, no formal acts of appropriation are required, however, any addition will relate to areas already under effective occupation. Indeed, because of the slow and gradual nature of the process involved it is clear that it is only a matter of time before discussion of this mode returns to relevance in particular cases. For instance, echoes of accretion and avulsion are to be found in the arguments presented before the boundary commission in the Eritrea–Ethiopia Boundary Dispute Arbitration, which began in 2000.³⁵ Where accretion, erosion or avulsion has added to affected territorial extents the effects will occur in a tridimensional manner and increase the airspace of the affected state.

Conquest or annexation is the acquisition of enemy territory after its conquest and a declared intent to annex. For this mode of title to be effective, military conquest is not enough; it must be followed by the intent to annex. There must be the declaration or other act of sovereignty by duly authorised and competent persons intended to provide unequivocal evidence of annexation. Italy formally annexed Ethiopia after its conquest in 1936. The Allies expressly disclaimed this act after their victory in the Second World War. Japan, for instance, established total control over Korea through a gradual process that began at the end of the 19th century and accelerated in the early years of the 20th century, leading to the 1905 Protectorate Convention and to the formal annexation in 1910. Questions as to the legality of this under international law divided lawyers for decades as many claimed that the position will have to include examination of both the state of international law at the time at which these events took place and international law as exists today.³⁶ The question will appear to have been well answered by the unequivocal apology made by Japan in 2010. In more recent times Iraq invaded Kuwait for the purposes of annexation in 1990 but UN resolutions and enforcement actions under Chapter VII of the Charter were brought to nullify and correct the illegality. It is perhaps safe to conclude that the current state of international law does not permit the use of this mode of acquisition any longer. As the case of Israeli occupation of Palestinian territories demonstrates, and has been restated in countless UN resolutions, occupation of conquered territory no matter for how long cannot confer legitimate title to the occupied territories. Conquest as a mode of acquisition is, therefore, purely of historical value.

Prescription results from peaceful exercise of de facto sovereignty for a long time, which either confirms an existing title or extinguishes a prior title. Some jurists express the doubt whether prescription confers a good title. The Island of Palmas Case,³⁷ the Anglo-Norwegian Fisheries Case³⁸ and the Eastern Greenland Case³⁹ are, however, in support of this principle. Prescription was actually used expressly or impliedly to support occupation in these cases. Prescription features strongly in the arguments of Nigeria in its claims over the Bakassi Peninsula although its use in that case was unsuccessful.⁴⁰ Joh...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Contents
• Acknowledgements
• List of abbreviations
• Table of cases
• Table of treaties, conventions and statutes
• Preface
• Introduction
• 1. Preliminary considerations: sovereignty, jurisdiction and control in international law
• 2. The legal status of the airspace
• 3. Jurisdiction over crimes in the airspace and on board aircraft
• 4. Jurisdiction and control in the airspace over international spaces
• 5. Sovereignty and trespass in territorial airspace
• 6. Jurisdiction and control in outer space
• 7. Legality of the common heritage of mankind principle in space law
• 8. Jurisprudential basis for common ownership
• 9. Jurisdiction and control rationae instrumenti and rationae personnae in outer space
• 10. Contemporary trends and threats to the regime of outer space law
• 11. The never ending dispute: legal theories on the spatial demarcation boundary plane between airspace and outer space
• 12. General conclusion
• Appendix I: Table AI.1. Chronology of notable military and diplomatic responses to aerial intrusions 1946–1999; Table AI.2 Chronology of allegations of Cuban airspace violations by aircraft of US nationality 1992–1996
• Appendix II: Sample of letters of protest and denial between Cyprus and Turkey – (a) Letter dated 5 December 2010 from the Permanent Representative of Cyprus to the United Nations addressed to the Secretary-General; (b) Letter dated 10 January 2011 from the Permanent Representative of Turkey to the United Nations addressed to the Secretary-General
• Appendix III: Sample of letters of protest by Iraq against the USA, Britain and France. Letter dated 11 February 2002 from the Chargé d’affaires a.i. of the Permanent Mission of Iraq to the United Nations addressed to the President of the Security Council
• Appendix IV: Diagrammatic representation of sovereignty and jurisdiction over maritime, air and outer spaces
• Appendix V: States and their position of choice in response to the spatial demarcation boundary plane question
• Index