Tuesday, October 8, 2013


File:Berner Iustitia.jpg TERRITORY AND THE COMMONS

INTRODUCTION: To read the previous 6 posts click here:  http://americanadmiraltybooks2.blogspot.com/p/the-enduring-principals-of-maritime.html 

 Territory in International Law refers to the land and water areas, both surface and subsurface, and the air space over those areas which are subject to the sovereignty of a particular state. 

 A state must possess a national territory to qualify as a state in any legal sense. The territory may be minute such as the Principality of Monaco, but without territory the most government like organization may not be, nor exercise the rights of a state. This is way all organizations like the PLO or Al Qaeda can not field "soldiers" entitled to the protections of the Geneva convention.  Those who bear arms for non governmental organizations are always legally either "unlawful combatants" at best or "terrorists". Such organizations may be governments in exile, international associations, or international political parties with aspirations of statehood  over some specific territory; but until they acquire and control territory, they can not be sovereign.

 Not all of the earth's surface is susceptible to incorporation into territory. A portion of the planet is recognized as the "commons' or common assets of all mankind. The commons of typical concern to maritime professionals includes the high seas and the deep seabeds. Naval professionals spend a great deal of time  enforcing rights to the commons and defending the territorial sea from threats transported across the commons. Many legal professionals are engaged in defining the emerging international management regime over the deep seabeds. Legal professionals serving the marine oil and mineral industries must be concerned with the rapidly emerging law of the outer continental shelf and deep seabeds. Any understanding of such evolving law must begin with a framework of the established concepts concerning territory. 


 The principle means of acquiring territory are:

 Territory may be lawfully acquired by effective and actual occupation. mere discovery and claim are
 insufficient. If a territory is not suitable for occupation, a nation may exercise sovereignty over it by the exercise of effective governmental jurisdiction. For example, the U.S. never permanently occupied the Guano Islands of the Pacific. However, the U.S. discover, lay claim to, extract deposits from, and regulate activities on these islands. The U.S. claim to title was recognized and respected more on effective control and use than occupation. 

 In the Antarctic Today a number of states have territorial claims based on discovery. Exploitation for industrial or commercial purposes with the possible exception of ecotourism is temporarily banned from this international scientific reserve. The Antarctic continent is not firmly in the commons and could be subject to territorial claims. at the moment, all claimants including the U.S. have put their claims on hold and created, at least temporarily, an international scientific reserve. at this writing, the ultimate fate of the Antarctic remains undecided. By international agreement it could join the high seas and deep seabed in the "commons"; or territorial claims could ultimately be perfected. As a result of the uncertain status of the Antarctic, some of the manned science stations, especially those of Argentina, sometimes engage in bizarre activities. One of the more common practices is to winter over an entire family, including a pregnant wife, to insure a birth on the Antarctic continent. This type of activity coupled with the staging of elaborate cultural events appears aimed at perfecting a territorial claim through occupation if the ultimate fate of the continent is division into territories. The fate of the Antarctic continent will involve resolution of numerous points of the International Law of Territory and the evolving discipline of international environmental law. 

 Offshore oil and mineral industry platform technology has opened large areas of the outer continental shelves to virtual occupation. This in turn, has led to broader claims to territorial seas and a shrinkage of the commons of the high seas. This shrinkage has generated international interest in and attached importance to the growing concept of navigational servitudes. The outer continental shelves of the world vary from just a few miles to hundreds of miles in width. If claims of territorial seas can be held to 12 miles by international law, there will be a strong push for international surface navigation servitudes across all outer continental shelves. The deep seabeds have been addressed by treaty, even before the technology for exploiting them had been perfected. It appears the deep seabeds will remain in the commons. So, despite the perceived closure of the colonial era, watery and frozen parts of the globe still lend themselves to territorial claims by occupation.

To be continued : Next a discussion of means of territorial acqusition

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