B. Principle of Territorial Sovereignty and Abuse of Rights

The basic dictum that governs the existence of the states should clearly emphasize the idea involving cooperation, mutual respect and peaceful co-existence. States, among each other, must exercise the respect and cooperation among its neighbors so as to avoid unnecessary conflict and should uphold the concept of territorial integrity and sovereignty. By virtue of this principle that avoidance of potential skirmishes and conflict shall be prevented and mitigated.

Hence, international law and international customary law recognizes the principle governing such mutual cooperation and respect and peaceful cooperation. It is imperative that indeed the principle of territorial sovereignty must be uphold all the time, as long as it does not hamper the territorial sovereignty and integrity of another State. The territorial sovereignty of one state to some extent must be flexible when it comes to the international obligations and must be recognizable of its limitations and distinction when confronted with international obligation and cooperation.

It must be noted that states cannot operate in isolation with its neighboring states hence, it is specifically stated in that state, in spite of its territorial supremacy, is not allowed to alter the natural conditions of its own territory to the disadvantage of the natural conditions of the territory of a neighboring State (Oppenheim, 1912). i It is explicitly stated in this context that states must operate in the context cooperation rather than in isolation even on the question of its territorial integrity and sovereignty.

The principle of so called ‘good neighborliness’ and sic utere tuo ut alienum non laedas (you should use your property in such a way as not to cause injury to your neighbor’s) ii must be invoked all the time especially in dealing transboundary issues and conflict resolution as well mutual cooperation context.

Between the interest of the Manatus and Senegalensis in dealing with the conflict between marine seismic survey and life of manatees and marine mammals, such principle must be recognized and uphold as well. It is well stated in this principle that Seneganlensis in its adherence to economic need for exploration of potential minerals it its territorial waters must in accordance with the rights and sovereignty of its neighboring state of Manatus which has interest on the protection and welfare of its marine environment which is adjacent to the EEZ of the Senegalensis. Hence, certain actions of Senegalensis must not be invoked by mere territorial sovereignty question but rather must be done in accordance with the principle of good neighborliness’ and sic utere tuo ut alienum non laedas.

This principle has been a guiding principle in dealing with jurisprudence already decided about environmental impact of the state activity with the other state. Take the case of Island of Palmas Case (United States v. The Netherlands, award in 1928) iii and Trail Smelter Case (United States v. Canada, awards in 1938 and 1941) iv which were a classic example of how the court decided on the cases that involve conflict of territorial sovereignty and state obligations with its neighboring states. It was clearly stipulated in this cases that states have the right to its territorial integrity and sovereignty but should be limited when rights and obligations with the neighboring states are being hampered.

C. Violations Committed By Senegalensis by Principle of Territorial Sovereignty and Abuse of Rights

Clearly stated in the binding agreement of the UNCLOS, several provisions of which was violated by the Senegalensis. The following are stated below:

1. Article 194 of UNCLOS clearly stipulated the idea that,

States, shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention.

The statement above is an indication that indeed states must cooperate with each other while recognizing and respecting the territorial integrity and sovereignty of other states as long as one activity does not hamper the rights of the other to have a healthy environment to live in.

2. Article 123 of the UNCLOS on the other hand stipulates that:

An increased duty to co-operate, which is incumbent on States bordering a semi-enclosed sea, both in exercising their rights and in performing their duties under the UNCLOS. It stated the four main areas of activity in which States are to cooperate which includes the following:

(a) Co-ordinate the management, conservation, exploration and exploitation of the living resources of the sea; and

(b) Co-ordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment.

The statement above is congruence to the idea that territorial integrity and sovereignty must be deal with according to the concept of ‘good neighborliness’ and sic utere tuo ut alienum non laedas.

3. Article 122 on the other hand, outlines the very definition of semi-enclosed seas which states that:

[…] a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States.

Here the idea presented the geographical set up of Manatus and Senegalensis which are adjacent to one another. Hence the likelihood of transboundary effects of one activity have significant, if not, impact to the other state.

4. Article 197 tackled principle of cooperation on a global or regional basis. v Basically the idea of this article centered on the responsibility and duty of cooperation among states regardless if it qualifies as semi-enclosed seas. The article specifically stated as:

States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or through competent international organizations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional features.

5. Article 194, of UNCLOS is another provision that need to be recognized when it comes to territorial sovereignty of states in relation to cooperation. The article stated that:

States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention.

This is a classic example of the UNCLOS provision that the dictum of sic utere tuo ut alienum non laedas is being applied. The provision is clear when it says that the activity of one state must always consider the effect of that activity to the neighboring state. Limitations to the exercise of the territorial sovereignty is being uphold when the state activity already hampers and endangers the sovereignty of the neighboring state.

6. Another, the Article 206 of UNCLOS supported the statement above. It provided the following idea that:

When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments.

The statement above is in congruence with the idea of sic utere tuo ut alienum non laedas where the state’s territorial integrity must also consider the rights and obligations towards the neighboring states.

By these provisions, the Senegalensis has no right to assert its territorial integrity and sovereignty when it comes to its right to exploration using marine seismic survey. It is imperative that the Senegalensis must desist to the activities that may hamper transboundary relationship with Manatus as long as proper cooperation is exhaustively considered. Such strong denial for the implementation of EIA is an action taken as violation of the provisions stated above by the Senegalensis.

i Oppenheim on International Law (1912: 243–44) Chapter Eight p.220ii Mendis, C., 2006. Sovereignty vs. trans-boundary environmental harm: The evolving International law obligations and the Sethusamuduram Ship Channel Project , Sri lanka: United Nation and Nippon Foundation .iii Island of Palmas Case, 2 RIAA (1949), pp.829–90. See also Lagoni (1981: 223–24).iv Text as in Harris (1991: pp.245,224.v Mendis, C., 2006. Sovereignty vs. trans-boundary environmental harm: The evolving International law obligations and the Sethusamuduram Ship Channel Project , Sri lanka: United Nation and Nippon Foundation.