Public International Law The Spatial Dimension of State Activities

1. Public International Law The Spatial Dimension of State Activities

2. - What is a state in the context of public international law? - What elements does it consist of? The notion of a state

3. The notion of a state • No universally binding legal definition of a state • 1949 Yearbook of the UN International Law Commission, p. 289 – the term „state“ is used with a meaning universally accepted in international practice • Since states are the primary subjects of international law, their definition must be possible to construct through the interpretation of legal norms • Country, power, nation-state – synonymous with state

4. The notion of a state • Georg Jellinek – a state is a territorial organization, consisiting of population, government and territory • Involuntary/mandatory character • 1929 Deutsche Continental case – territory, population, effective government • Arbitration Commission of the Peace Conference on Yugoslavia – opinion no. 1 • 1933 Montevideo Convention – ability to maintain international relations

5. The notion of a state • Is international recognition necessary for the existence of a state?

6. The notion of a state • Unilateral manifestation of a state's will, with legal effects both in international and domestic law • Constitutive, declarative, eclectic, differing effect theories • Partially recognized and unrecognized entities

7. The notion of a state • What is sovereignity?

8. The notion of a state • The ability to make decisions independently, lack of legal subjugation to other parties • Is sovereignity absolute? • Formal and factual subjugation • Kosovo, Bosnia, Liechtenstein • International law • Membership in international organizations • Sovereignity as an attribute of a state and as a relation between a state and its territory

9. Background • Discovery, terrae nullius • 1884-85 Congo Conference in Berlin – actual, effective control (upheld in 1928 Island of Las Palmas case) • Sea around the territory • Air space – usque ad sidera (up to the stars) • The high seas – res communis omnium (XVII century principle) – all states are free to sail their ships and utilize resources

10. Background • After WWII – technological advancement, fishing on the high seas, excavating mineral resources from the seabed • Two approaches – community-based and individualistic • Developing/developed countries • Common heritage of mankind

11. Territory • A portion of land, subject to the sovereign authority of a state • Are there any lands not subject to any state?

12. Territory • Antarctic region • Argentina, Australia, Chile, France, New Zealand, Norway, the UK • Claims based on discovery, symblic annexation or the doctrine of contiguity • 1959 Antarctic Treaty • Claims are suspended, not renounced

13. Territory • Principal modes of acquiring territory • Occupation of no-man's-land • Cession by treaty, followed by effective peaceful transition of sovereignity • Conquest/debellatio – occupation as a result of military action • Accretion • Which of these modes are now obsolete and why?

14. Territory • Uti possidetis doctrine • Decolonization • Spanish America, Africa, Yugoslavia • 1986 ICJ case Concerning the Frontier Dispute - „a general principle“ • Arbitration Comission opinion no. 2, 1992 – no-self determination for Serbs in Croatia and Bosnia • 1960 UN Declaration on the Granting of Independence to Colonial Countries and Peoples • 6. Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.

15. Territory • Unclear whether uti possidetis is a part of customary law or a practice devoid of any binding power

16. Airspace • How high does the airspace of a state go?

17. Airspace • „Up to the stars“ • No set limit to the height of airspace • At least as high as any aircraft may fly • Stratosphere – 50 km • It is forbidden to fly through foreign airspace without permission • Bilateral and multilateral agreements concerning overflight

18. Airspace • 1944 Chicago Convention on International Civil Aviation • Article 5 section 1 – aircraft of the contracting states not engaged in scheduled international air services is allowed to fly into or in transit non-stop across and make stops for non-traffic purposes even without prior permission, subject to the right of the state flown over to request landing

19. Outer space • Boundary between airspace and outer space space is not specified • Space race in the 1950s • The launch of Sputnik in 1957 – a new customary norm, states are not required to ask permission to launch satellites or spaceships • Res communis omnium – open to exploration for all states • 1961 and 1963 UN GA resolutions, 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies

20. Outer space • 1967 Treaty is widely accepted, basis for customary norms • Principles of space law: • Is not subject to the sovereignity of states • Use and exploration is for the benefit and in interest of all states, regardless of their development • It is the province of all mankind (art. 1 of the 1967 Treaty, art. 4 of the 1979 Agreement) • It is demilitarized and denuclearized

21. Outer space • No specific legal obligations for the exploring states • 1979 Agreement, art. 4.1 and 11.1 – natural resources on the Moon and other celestial bodies are the common heritage of mankind – only 18 parties

22. Outer space - 1967 Treaty – states have the obligation to conduct a registry of spaceships - The state sending a spaceship has jurisdiction over it and its crew - 1974 Convention on Registration of Objects Launched into Outer Space - 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Spaces

23. Outer space - All states have the obligation to rescue astronauts in the event of a spaceship failure, as they are emissaries of all mankind - Space objects are to be returned without inspection or research - 1972 Convention on International Liability for Damage Caused by Space Objects - Risk-based liability (airspace and ground), fault-based liability (outer space) - Solidary responsibility - Invited astronauts

24. Sea • Divided into areas governed by different principles • 1958 Geneva Conventions on the Law of the Sea • Largely supplanted by the 1982 Convention on the law of the Sea (Montego Bay Convention)

25. Sea • Territorial sea • Waters surrounding the territory of a state, including bays, gulfs and straits • Its width has been a subject of controversy • Effective artillery range (3 nautical miles) • Art. 3 of the 1982 Convention – no more than 12 nautical miles measuring from the baseline • 1 nautical mile – 1,852 kilometer

26. Sea • Art. 5 (a reflection of an earlier customary rule) – normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal state • Art. 7 section 1 - In localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured.

27. Sea • Section 3 The drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters. • Section 4 Straight baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them or except in instances where the drawing of baselines to and from such elevations has received general international recognition.

28. Sea • Section 6 The system of straight baselines 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.

29. Sea • Territorial sea (along with its airspace, seabed and subsoil) – full sovereignity • Right of innocent passage of foreign merchant ships and warships • Submarines, guns • Not prejudicial to the peace, good order or security of the coastal state (art. 14 section 4 of the 1958 Convention) • Breach of domestic laws • Notification (forty states)

30. Sea • Art. 27 – criminal jurisdiction on board of a foreign ship • Section 1 The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the following cases: • (a) if the consequences of the crime extend to the coastal State; • (b) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; • (c) if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; • or (d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.

31. Sea • Section 2 The above provisions do not affect the right of the coastal State to take any steps authorized by its laws for the purpose of an arrest or investigation on board a foreign ship passing through the territorial sea after leaving internal waters. • Section 5 The coastal State may not take any steps on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed before the ship entered the territorial sea, if the ship, proceedingfrom a foreign port, is only passing through the territorial sea without entering internal waters.