Legal Research - UNCLOS

I.

INTRODUCTION

The United Nations Convention on the Law of the Sea (UNCLOS), also called the Law of the Sea Convention or the Law of the Sea is an international agreement that defines the rights and responsibilities of nations in their use of the world's oceans and introduces guidelines for the management of such in an attempt to settle disputes.

In its preamble, UNCLOS highlighted its goals which are geared towards establishing a legal order for the seas and oceans to facilitate international communication and promote peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of living resources, and the study, protection and preservation of the marine environment. In consonance with the objectives of international law, UNCLOS is to strengthen peace, security, cooperation and friendly relations among all nations.

The Philippines is a Party-Signatory to UNCLOS and as such, has to abide by its provisions, commencing on December 10, 1982 which was later ratified on February 24, 1984. It is worthy to note that prior the UNCLOS, the Philippines was already governed by the 1935 and 1973 Constitution in which the definition of territory was based on the Treaty of Paris. Following the argument of Voltaire Garcia, delegate of Rizal province in the 1971 Constitutional Convention that territorial definition was a subject of international law, not of municipal law and that the Philippine territory was already defined by existing treaties, the Constitution as a municipal law shall not rule over the existing treaties. .

II.

OBJECTIVE

This paper aims: (a) To examine or to look into the impact or effects of the aforementioned treaty to the Philippines through its (1) Constitution (2) Statutes (3)Administrative Order and (4) Provincial or City Ordinances (b) To reconcile or harmonize the UNCLOS provisions with Philippine domestic laws

III.

DISCUSSION

A. 1987 Constitution Our Constitution, specifically Article 1 Section 1 under National Territory defines the extent of the Philippine territory and provides that “The national territory comprises the Philippine Archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between and connecting the islands of the archipelago regardless of their breadth and dimensions, form part of the internal waters of the Philippines.” The need for delineation of Philippine territory was discussed by Fr. Joaquin Bernas, S.J. when he cited the case of Reagan vs Commissioner of Internal Revenue where the Supreme Court held that the “Philippines, being independent and sovereign, its authority may be exercised over its entire domain. Within its limits, its decrees are supreme, its commands paramount. Its laws govern therein, and everyone to whom it

applies must submit to its terms.” In order for the country to achieve economic development, growth and progress, it has to draw the line of its jurisdiction. According to then Delegate Raul Roco, the Philippines needs to establish archipelagic baselines mainly 1) for the purpose of ensuring the national security and territorial integrity and 2) for economic reasons, to enable the Philippines to establish the different maritime zones. However, the technical description of the Philippines embodied in the Treaty of Paris left some doubt in the inclusion of Batanes Islands (Bernas, Constitution of the Philippines: A Commentary). The 1935 and 1973 Constitutions tried to cure the defect but due to several arguments among the delegates, Batanes was not explicitly written as a part of the Philippines because, as pointed out by Delegate Garcia, no state has ever questioned the continued exercise of the Philippine sovereignty over these islands. Upon the effectivity of the UNCLOS, Batanes was deemed to be a part of the Philippine archipelago when it defined archipelago under Article 46 paragraph 2 as a “geological definition which refers to a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such”. Hence, the Philippines may claim Batanes Islands on the basis of “historic right and legal title” by virtue of the aforementioned UNCLOS provision. B. Statutes To understand the extent of the territorial sea, one must begin with an understanding of baselines. The baseline is “the low-water line along the coast as marked on large

scale charts officially recognized by the coastal State” (Bernas). There are three ways of drawing the baseline – by normal baseline, by straight baseline or by archipelagic baseline. Republic Act No. 3046 entitled “An Act Define The Baselines Of The Territorial Sea Of The Philippines” enacted on June 17, 1961 was later revised by RA 5446 entitled “An Act To Amend Section One Of Republic Act Numbered Thirty Hundred And Forty-Six, Entitled "An Act To Define The Baselines Of The Territorial Sea Of The Philippines"” which was enacted on September 18, 1968. As an archipelago, we are to use archipelagic baseline. However, both RA 3046 and RA 5446 refer to straight baseline under Article 7 of UNCLOS, hence they do not have international recognition.

Since they were enacted before the adoption of

UNCLOS, some of the statutes’ characteristics and technical features were expectedly inconsistent with the requirement s of the UNCLOS. The validity and enforceability then of the Philippine baselines under said statues are doubtful from the perspective of international law. (Rep. Cuenco) In contrary, the decision in Anglo-Norwegian Fisheries case upholding the validity of straight baseline method eventually became part of UNCLOS. The rule now is that 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 straight baseline joining appropriate points may be employed (Bernas). However, although the use of straight baseline as practiced in the Philippines was affirmed by UNCLOS, the second requirement by Article 47 which prescribes that “straight baseline must not exceed a maximum of 125 nautical miles” was not complied

with because some lines drawn by RA 3046 and RA 5446 went beyond 125 nautical miles. Hence, there is a need to harmonize or reconcile Philippine laws with UNCLOS because as specifically provided by the Vienna Convention under Article 26, “Every treaty in force is binding upon the parties to it and must be performed by them in good faith”. As proposed by Rep. Antonio Cuenco, one way of harmonizing the Philippine baselines law with UNCLOS is by amending RA 3046 to adjust existing baselines in accordance with the technical requirements under Article 47 of UNCLOS regarding the drawing of archipelagic baselines. The establishment of archipelagic baselines is the starting point for determining the different maritime zones of the Philippines which could lead to maximum utilization of the country’s resources. In March 2009, RA 9522 entitled “An Act To Amend Certain Provisions Of Republic Act No. 3046, As Amended By Republic Act No. 5446, To Define The Archipelagic Baseline Of The Philippines And For Other Purposes”, was enacted which sought to conform with the technical prescriptions of the UNCLOS on archipelagic baselines. C. Administrative Order Many of UNCLOS' articles on fishing rights relate to who has the right to control and exploit various fish stocks. While these articles are not primarily environmental in nature, they do contain provisions on regulating overfishing, which is itself an environmental concern. In January 14, 2004, the Department of Agriculture issued Administrative Order No. 1 labeled as “Guidelines for Delineating/Delimiting Municipal Waters for Municipalities and Cities without Offshore Islands”. The goal was explicitly mentioned

in Section 1 which is to implement the constitutional and Statutory State policy of protecting the rights of the people, especially of the local communities with priority to marginal fisherfolks, in the preferential use of the municipal waters and to ensure the attainment of the objectives of the fishery sector. There is a need for delineation and delimitation in order to establish boundaries among local communities. Delineation means the determination of the outer limits of the municipal waters of a municipality while Delimitation refers to the determination of boundaries of municipal waters between adjacent of opposite municipalities where the delineation of their respective waters show that their respective waters overlap. This administrative order lays down the guidelines on how the process of delineation and delimitation among municipal waters of municipalities without off shore islands can be done since there are several opposite and adjacent municipalities claiming jurisdiction over municipal waters. Under Section 3, it covers all municipal waters which include, not only streams, lakes, inland bodies of water and tidal waters within the municipality but also marine waters. Section 5A indicates parties who may request for delineation who shall be (a) a city or municipality individually or jointly with other cities/municipalities with whom common boundaries are shared, through a resolution of the Sangguniang Panglungsod or Sangguniang Bayan; b) a province on behalf of all of its coastal municipalities, through a resolution of the Sangguniang Panlalawigan; c) a national government agency (NGA) on behalf of any city or municipality, through a formal letter/request signed by the head of the agency, but only with the conformity of the affected local government units, expressed in form of a resolution of the Sangguniang concerned which shall be attached to the letter or request. Section 5B further prescribes the use of

normal baseline, straight baseline and a combination of these baselines depending on the circumstances and in the interest of simplicity in determining the general coastline and delineating municipal waters. Section 4 provides for the specific government agencies that shall have principal roles in the delineation and delimitation. First is the Department of Agriculture which shall assist the National mapping and Resource information Authority (NAMRIA) and shall provide for the implementation mechanism for such delineation. Next is the NAMRIA which has to delineate in accordance to the provisions of the UNCLOS. It shall delimit the boundaries of municipal waters on maps or charts of appropriate scale as well as demarcate areas where seven fathoms of sea depth is found as requested by the local government units and as a result, provide the local government units the purposed maps and technical descriptions of the maps. Third is the Local Government Unit which shall request the NAMRIA to delineate/delimit the boundaries of their municipal waters. Lastly, using participatory approach, other agencies and/or entities such as the Barangay or municipal or city Integrated FARMCs, People’s Organizations, Non-Government Organizations, and the academe, that are involved or may have a stake in the management and development of municipal waters may request. It is worthy to note that DA Administrative Order No.1 seeks to settle boundaries of municipal waters among opposite and adjacent municipalities to avoid disputes on matters of jurisdiction and utilization of natural resources. The guidelines set forth by the Administrative Order are still in consonance with provision of UNCLOS, however its provisions are responsive of minute details among municipalities, cities and provinces, contrary to a generalist perspective of the Constitution and of the statute.

D. Provincial or City Ordinance IV.

PRESSING ISSUE

The United Nations Convention on the Law of the Sea binds the Philippines, as a signatory therein, from the fundamental law of the land down to its ordinances. It has affected the national growth as well as individual progress of every Filipino as it tries to provide clear delineation and delimitation of maritime zones which aids equity. However, there are still unsettled disputes that are yet to be answered by construing the provisions of UNCLOS. One of these issues is the claim of several South East Asian countries over Spratlys or Kalayaan Islands. RA 9522 enacted in March 2009 provides in Section 2 “The baseline in the following areas over which the Philippines likewise exercises sovereignty and jurisdiction shall be determined as "Regime of Islands" under the Republic of the Philippines consistent with Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS): a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596”. However, the other five countries of the “Spratly six”, Brunei, Malaysia, the People's Republic of China (PRC), the Republic of China (ROC) on Taiwan, and Vietnam seem to be determined to claim Spratlys or Kalayan Islands in their respective contentions. In order to settle this, a close look at the provisions of UNCLOS is but proper. Upon review, Xavier Furtado said that “while the Convention's stipulations are broad and multifaceted, there are a number of key concepts that lie at its core: the notion of a 200-nautical-mile EEZ; the notion of historical entitlement and claim; the assumption that the Convention's provisions take precedence over earlier norms/principles embodied in earlier agreements; the legal

definition of an island; the rights and privileges of archipelagic states; the use of baselines to delineate territorial waters; and the practice of asserting and exercising administrative control (sovereignty) over new territory. Despite the Convention's apparent breadth, and the fact that it has contributed to the successful resolution of other oceanic disputes, some of its central concepts and assumptions make its application to the Spratly question awkward.

Despite the aforementioned, heads of state of these countries believe that only the UNCLOS can settle this dispute and not through bilateral or multilateral talks. There is a need then for a full blown and comprehensive review of the UNCLOS to finally settle the issue before the “Spratly six” come into war.

V.

SUMMARY AND CONCLUSION

The UNCLOS, as an international agreement binds the Philippines. Proper adjustments in domestic laws should be made if it is in contrary to international agreements because firstly, the Philippines is a member of the family or community of nations, and as such, is subject to the law of nations or international law which governs inter-state relations. As held by the International Court of Justice in the Anglo Norwegian Fisheries Case, “The delimitation of sea areas has always an international aspect; it cannot be dependent merely upon the will of the coastal state as expressed in its municipal law. Although it is true that the act of delimitation is necessarily a unilateral act, because only the coastal state is competent to undertake it, the validity of the delimitation with regard to other States depends upon international law.” Secondly, the Philippines is bound to perform its obligations in the Convention under the principle of

pacta sunt servanda, which is a fundamental principle of the law of treaties which provides that treaties are binding on the parties and must be performed in good faith. As a State-Party to the UNCLOS, the Philippines cannot invoke its domestic laws in order to escape its obligations under the Convention. Article 27 of the Vienna Convention on the Law of Treaties provides “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” Lastly, if there is incongruence, the local statute will not be recognized by any country as it is not consistent with international law. Efforts have been made by the Philippine legislature to enact laws in order to align its procedure and precepts with that of international law.