Territorial sovereignty
The
concept o sovereignty is based on the internal supremacy of the government as
an institution and the external supremacy of the state as a legal person.
Sovereignty is premised on the existence of territory without which the legal
person/entity cannot be a state. The existence of territory is the most basic
characteristic of a state which is most widely accepted and under stood. The
ascertain of sovereignty denotes that a state exercise jurisdiction over
persons and properties within her territory to the exclusion of other states.
Sovereignty in the relationship between states signifies independence of one
state as regards the portion of the earth which is her right to exercise
therein to the exclusion of any other state, the functions of a state. States
territorial sovereignty may be acquired through the following ways:
1. Occupation: this involves establishing of
sovereignty over territory not under the authority of any other state. In this
situation, the principle of effectiveness is very important the desire to occupy must be accompanied by
the capability to occupy. The occupation must be peaceful, valid and
continuous. There must be bong evades of occupation continuous. There must be
long deceases of occupation and there must be no challenge to that occupation
the occupied territory must also be peaceful. Occupation must be by a state and
not by private individuals, occupation is often preceded by discovery, that is
the realisation of a particular piece of land. Discovery must be accompanied a
by a more symbolic act of taking possession either by raising of flags or by
solemn proclamations or more elaborate ritual expressions. The key issue in
occupation is that the act must be effective, peaceful and actual.
2. Annexation: Annexation may occur where a territory has
been conquered or subjugated by an another state through the use of force. The
act of defeating an opponent and occupying all or part of its territory, under
international law is regarded as the rights of belligerent occupation.
Sovereignty under such conditions does not pass to the occupying force but
remain the legal possession of the ousted sovereign. The territory which has
been annexed must be in a position of vital subordination to the annexing state
by the time the annexation took place. The most common type of annexation is
that of war where the conqueror annexed in whole or a part of the conquered.
Japan annexed Korea following its defeat of Russia in 1905 and held unto it
until its own defeat in world war II. Annexation is now longer acceptable under
international law where it results from aggression.
3. Accretion – This describes a
geographical process by which new land is formed and becomes attached to the
existing land. This is more or less a natural occurrence. It may occur over a
long period of time. It does not happen often. The rise of islands along coasts
and coastal areas could became an integral part of the nearest state. Also a change
in the direction of a boundary river may leave dry land where it previously
flowed. The drying up of a river or the recession of the sea could also create
dry land. Accretion could occur in form of a volcanic eruption. In 1986, an
island emerged in the Pacific ocean caused
by the corruption of an under-sea volcano. International accepted that
the island hearing emerged within the territorial seas of the Japanese Island
of Iwo Jima is a Japanese territory. Accretion is allowed by international law
because these is no act of aggression involved.
4. Prescription: This is the result of the
peaceful exercise of de-facto sovereignty for a very long period over a
territory subject to the sovereignty of another state. If a state has subject
to the sovereignty of another state. If a state has been able to acquire title
over a territory of another state without being challenged over a period of
time, such territory is described as acquisition by prescription. Time or acquisition
is illegal and unacceptable by international law. Britain gained control of the
talk land is lands through this process.
5. Cession: This is an act of leeching property or rights
thereof by mutual agreement form one
sovereign to another. Cession often takes place within the framework. Of a
peace treaty often a war or for economic reasons. It may occur voluntarily or
under duress. The orderly transfer of power from a colonial authority to an
indigenous authority is also a form of cession. When cession of territory takes
place, the new sovereign must respect the right of third parties if there are
any involved, for instance, the right of passage over the territory.
Austiaceded vernice to France in 1866 and France shortly afterwards ceded the
territory to Italy. Alska was purchased form Russia by the US in 1867, while
Denmark sold a large chunk of its territories in the West Indies to the US in
1916. China was forced to cede Hongkang to Ritain in 1i87 after the opium War
for a period of one hundred years. The Chinese state eventually took back
control of Hougkong in 1997.
State sovereignty over the air space
Before
the World War I, there was less speculation and controversy over the
supremacist territory (air space) of a state. The original understanding was usage
ad column concept that states have unlimited sovereignty over her airspace. It
was also accepted that the air space was free and of no great consequence until
the discovery of the balloon. This was followed with the subsequent discovery
of the aeroplane which was considered a revolution because of the rational
questions it brought so the right of absolute sovereignty of a state over her
territorial airspace. It was also accepted that the air space was free and of
no great consequence until the discovery of the balloon. This was followed with
the subsequent discovery of the aeroplane which was considered a revolution
became of the rational questions it brought on the right of absolute
sovereignty of a state over her territorial airspace. This led to series of
multilateral and bilateral conventions and agreements on the need for airlines
to cross and land in the territory of other contracting states under recognized
conditions and in the light of the accepted regulations.
The
Paris convention of 1999 on air navigation agreed that every state must
maintain absolute sovereignty over her airspace but that provisions has to be
made for air traveling.
The international civil Aviation conference held in Chicago in 1944 came up with five basic rights or rules governing air travel.
1. The
right to fly over a foreign territory without landing.
2. The
right to land for non- traffic purposes-such as refueling,
breakdown/maintenance, bad weather and general emergency or distress purposes:
3. Freedom
to disembark in a foreign country traffic originating in the state of origin of
the aircraft.
4. The
right to pick up in a foreign country traffic destined for the state of origin
of the air craft.
5. The
right of carry traffic between two foreign countries.
The
international civil Aviation organization emerged in 1947 as a permanent body
on aviation issues. The 1919 conference also contained the permission required
before an aircraft can fly over the territory of another state. Such permission
is required to guarantee the safety of the aircraft as used as that of the
state whose territory is being used. An aircraft can be shot down or ordered to
go back it if fails to obtain adequate permission. In 1988, a Nigeria aircraft
conveying Olympic athletes to Seoul was nearly shot down over Pakistani
airspace for failure to obtain adequate permission.
The
fact that an aircraft is permitted to fly over a territory does not mean such a
flight is random or indiscriminate. The aircraft has to follow a strictly
allotted air route or comid or during an over flight. The reasons are both for
the security o the state and the safety of the aircraft. Each state has it =s
sensitive areas where it wishes to protect from prying eyes. This could be
security zones, unclear planed, research centres, military establishment and
other institutional establishments that needed seclusion. Taking of photographs
or the display of undue interest is not allowed. The aircraft is kept under
constant watch and is immediately called to order if it deviates form a normal
flight schedule. The control tower keeps steady watch over aircrafts within its
territory. Aircrafts are required to keep strictly to their allocated. Air
crafts are required to keep strictly to their allocated corridor in order also
to avoid collision with other aircrafts using the same airspace. The airspace
is burier than most high ways or mooneyes and carelessness or slight deviation
from the flight plan could lead to disaster. According to a recent report,
there are about 500,000 aircrafts in the air at any given time ref.
Space technology and the outer space
The
issue of air space sovereignty and the concept of ague and column has been
greatly affected by space technology since the end of world War II. This has
lead to the great question of the outer space and the upper strata of the
superjacent space. With the launching of a satellite into space by the soviet
union in 1957, space exploration have developed and expanded of a terrifying
ratter. Space excursions have been made to them on and other planets like Venus
and Saturn’s, leading to scientific interest in areas such as earth resources,
ionosphere activities, solar radiation, cosmic rays and the general structure
of space an planet formations ref.
This
immense level of activity in outer space has led to the need to develop the law
of the outer space, aimed at regulating the interest of the various states
involved while taking into account the general well being of the rest of
humanity. In 1963, the UN General Assembly adopted a resolution entitled. The
Declaration of legal principles governing the Activities of states in the
exploration and use of outer space.
Some of the legal principles laid down by
the Declaration which were later codified by subsequent protocols and
agreements are as follows.
1. The
celestial bodies, mean, star, sun etc, shall not be subject to national appropriation by any state.
2. Firing
of weapons or setting up an among in the outer space is disallowed. Such bodies
should not be used for military purposes or for acts of aggression.
3. Any
State that launches satellites into the orbit should give accurate information
concerning its space installation, their purpose, location, parameters, etc
4. All
scientific discoveries and invenstions which occur of the upper strata of the
atmosphere is or the general interest of humanity.
5. States
launching satellites into the outer space must do so in a way that will not
harm the ecology of the heavens.
6. the
question of communication by satellite was recognised since it facilitates
information flow and benefits those states that have the capacity within their
reach.
7. States
which launch materials, articles, objects, spaceship, etc into space retain
their sovereign rights over those objects.
8. States
are duty bound to facilitate the passage of objects intended for exploration in
outer space. This is based on the notion that scientific discoveries on outer
levels are for the common good of humanity.
9. The
activities of non-governmental entities
in outer space must be subject to authorisation and supervision by the appropriate state party to the
arrangement.
10. The
1967 Treaty on Principles governing the Activities of States in the Exploration
and Use of outer space does not establish in a precise boundary between
airspace and outer space but it provides the framework for the international
law of outer space. It has been difficult to determine the point at which the
airspace meets the outer space itself but figures between 50 and 100 miles are
regarded as a working arrangement.
Sovereignty over territorial rivers and
internal water
International
law accepts that a state has absolute sovereignty over rivers that is wholly
within its territory. However, where a river passes through the territories of
many countries, the question of ownership or right of control because
problematic because of a number of issues.
It is
accepted that each country has sovereignty over that part of the river that
runs through its territory. Arising from this is the question of navigation,
what is the is the right of the Riparian state? Does its right of navigation
stop where its own part of the river ends or can it go on into the waters of
other states?
International
law states clearly that the country’s right of navigation ends where its river
ends and it wishes to go on, it can only do so based on agreement with its
neighbours. The Danube Agreement was entered into by European countries stating
that the Dambe River, which runs across Europe, is to be jointly used for
economic activities as a mutual basis. The river Nigeria which runs across West
Africa serves the same purpose.
In
theory, it may seen as if a country can
do whatever she likes with her own portion of the river but in practice it is
not acceptable. International holds that a state must not use its part of the
in a way that will have negative effects
on her neighbours part of the river.
A
state can dam the river in her territory only it has direct access to the sea.
Nigeria, for instance, has this advantage while Nigeria does not. If Nigeria
tries to dam the river, it will affect other countries. Dumping of toxic waste,
chemical waste or river poisoning by one country in her part of the river is
against international law because it will affect others.
A
states jurisdiction is supposed to extend to the waters, rivers, seas and ocean
within her territory. It also extends to ships bearing the flag of the state
when it is international waters. If a Nigerian ship anchors in Ghana, the
jurisdiction of the Nigerian state holds over the ship and the Guardian
authorities conintervene only if the ship was involved in acts inimical to the
security of Ghana.
In
the case of a ship flying the flog of a state, such a ship is regarded as a
floating island and is a part and parcel of the state whereven it goes. The
state whose flag is flown ought to have
a legal relationship over that ship. Liberia and Panama has the largest number
of ships flying their flags. This is because their shipping laws are flexible
and as such, other nationals come to
Liberia and Panama to register their ships. Consequently, such ships cannot
call on their home governments for
protection in time of conflict.
The
parts of a state are natural parts of the state where it is located. In theory,
the laws of the state above the port is located is applied, but when outside
ships enters, they are governed by two regulations- that of their home government and that of their host
country. By and large, the state that hers territorial sea ports is supposed to
allow the rights of innocent passage to ships that did not mean any harm. It
mighty have called to collect supplies, or general merchant goods or oil or any
other article of commerce.
Unless
the ship flying the flag of a state with which it is at war or which had been
banned from their shores, the general rule therefore is that the vessels of
other countries has the right to come around peacefully and its jurisdiction
should respected as long as it did not interfere with the security of the host
state. This is referred to as the right of innocent passage and this right is
guaranteed by international law.