Special Issues in International Law

SPECIAL ISSUES IN INTERNATIONAL LAW (Law of the Sea) FREEDOM OF THE SEAS � A ship on high seas enjoys the freedom to navigate. � UNCLOS reinforces this freedom by subjecting such a vessel to the exclusive jurisdiction of the flag state. • Thus, a vessel may be boarded by a warship or by a government vessel at any time; • Vessels engaged in piracy, in slavery and in the tariff of narcotics may likewise not fend off inspection and legal action because of the freedom of the high seas; • The interest of the international community out of these evils is safeguarded by appropriate treaty provisions. Two concepts: - mare liberum, or the sea held to be free and open to all for all purposes; - mare clausum, or the sea held to be appropriated by particular nations. ● Who shall control the seas and for what purposes? ● How do we balance between the general interest (advocating freedom of the sea) and the particular interest of coastal states (advocating the extension of their authority to at least a certain belt of the adjacent sea)? UNCLOS The law of the sea is one of the oldest disciplines in international law. It is primarily concerned with the rules which bind states in their international relations concerning maritime matters which are basically molded by the political, geographical and economic relations of states. Types of waters recognized under UNCLOS Territorial Sea - This refers to the waters adjacent to the coasts or a state, excluding the internal waters in bays and gulfs, which do not form part of the open sea. The Convention fixes the maximum breadth of the territorial sea a state may claim at 12 NM seaward from the baseline.

• Innocent Passage - The Convention confirms the right, established in customary international practice of all ships to innocent passage through the territorial sea. It specifies activities of ships not considered innocent. The regime of innocent passage does not include the right of over flight or submerged passage. • Transit Passage - The Convention also confirms the right, established in customary international practice, of all ships and aircraft to unimpeded passage in the normal mode through, over, and under the territorial sea when transiting an international strait without a high-seas route through it. Innocent Passage in Territorial Sea – • Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal state. • Passage of a foreign ship shall be considered prejudicial to the peace, good order or security of the coastal state if in the territorial sea it engages in any of the following activities: �Any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal state, or in any other manner in violation of the principles of international law embodied in the UN Charter; �Any exercise or practice with weapons of any kind; Any act aimed at collecting information to the prejudice of the defence or security of the coastal state; �Any act or propaganda aimed at affecting the defence or security of the coastal state; �The launching, landing or taking on board of any aircraft; �The launching, landing or taking on board of any military device; �The loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration

or sanitary laws and regulations of the coastal state; Any act of willful and serious pollution; �Any fishing activities; �The carrying out of research or survey activities; �Any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal state; �Any other activity not having a direct bearing on passage. Archipelagic Waters – All waters inside the archipelagic baselines are archipelagic waters. The archipelagic state exercises sovereignty over said waters as stipulated in Part IV of the Convention. • Right of Innocent Passage – Ships of all States enjoy the right of innocent passage through archipelagic waters. • Archipelagic Sea Lanes Passage – An archipelagic state may designate sea lanes suitable for the continuous and expeditious passage of foreign ships through or over its archipelagic waters and the adjacent territorial sea. Contiguous Zone - The coastal state may exercise control necessary to: 1) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; 2) punish infringement of the above laws and regulations committed within its territory or territorial sea. ● It may not extend beyond 24 NM from the baselines from which the breadth of the territorial sea is measured. Exclusive Economic Zone (EEZ) - The Exclusive Economic Zone (EEZ) is the zone extending seaward from the outer limit of the territorial sea out to 200 miles from the baseline. ● In EEZ, the coastal state has: � Sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superadjacent to the seabed and of the seabed and its subsoil, and with regard to other activities

for the economic exploitation and exploration of the zone, such as the production of energy from water, currents and winds; � Jurisdiction with regard to: • The establishment and use of artificial islands, installations and structures; • Maritime scientific research; • The protection and preservation of the marine environment; Straits Used for International Navigation – are those between one area of the high seas zone and another part of the high seas or an exclusive economic zone through which all ships and aircraft have the right of transit passage. High Seas– are all parts of the sea that are not included in the exclusive economic zone, the territorial sea, or the internal waters of a state or in the archipelagic waters of an archipelagic state. It is open to all states. CONTINENTAL SHELF ●The continental shelf comprises the sea bed and subsoil of the submarine area that extend beyond the territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin or to a distance of 200 nautical miles from the baselines from which the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance. ●Coastal states have the right to exploit the mineral resources of their continental shelf but must pay a small commission through the International Sea-Bed Authority (ISBA) to other states from the proceeds of any exploitation of resources beyond 200 miles from shore. ●Coastal state jurisdiction over the continental shelf does not affect the legal status of the waters above. Thus, beyond the territorial sea, the freedoms of navigation and over flight, as well as other internationally lawful uses of the seas related to these freedoms, including the right to lay submarine cables and pipelines, are the same above a continental shelf as on the high seas. UNCLOS Dispute Settlement Provisions

It is Part XV of UNCLOS that is designated as Settlement of Disputes; - Additionally, annexes V (Conciliation), VI (ITLOS), VII (Arbitration) and VIII (Special Arbitration) relate to the specific mechanisms that Part XV propounds; - It must be noted that as a UN instrument, the Convention still is traversed by the principles and norms that emanate from the UN Charter as well as any other applicable instrument; - Most, if not all, of the UNCLOS State Parties are members of UN as well, and by virtue of Article 103 of the Charter, it is the latter that prevails over any other treaty obligations; - Note: 3rd UN Conference on the Law of the Seas – the dispute settlement of provisions of UNCLOS under Part XV and the 4 Annexes applies only AS A MEANS TO SETTLE DISPUTES THAT COULD ARISE FROM THE INTERPRETATION AND APPLICATION OF UNCLOS. 4 Fundamental Aims that Guides the Process Under Part XV: 1.Settlement of disputes was to be based on law to avoid disputes being settled through the political and economic pressures of the more powerful States; 2.The greatest possible uniformity in the interpretation of the Convention would be sought through compulsory dispute settlement; 3.Exceptions would be carefully determined in order to enhance the obligatory character of the settlement regime; 4.The system of dispute settlement had to constitute an integral part of the Convention rather than be included as an optional protocol. Main Characteristics of Part XV: 1.It is a subsidiary mechanism to solve the parties’ disputes. It firstly allows parties to deal with their disputes in a pacific manner under the means of settlement of their own choice; 2.It requires from the parties to exchange views, therefore privileging a negotiated solution; 3.When used, Part XV provides for any escalation procedure, starting with diplomatic means of settlement, followed by (if

resorted to) conciliation and afterwards entering into adjudicative binding methods (if the issue is not excluded by the Convention or by a declaration). Part XV comprises 20 Articles which are arranged into three sections, namely: 1.SECTION 1 – GENERAL PROVISIONS a. Diplomatic means b. Freedom of choice c. Non-compulsory conciliation 2.SECTION 2 – COMPULSORY PROCEDURES WITH BINDING DECISIONS a. Compulsory settlement thru ICJ, ITLOS or Arbitration 3.SECTION 3 – LIMITATIONS AND EXCEPTIONS TO APPLICABILITY OF SECTION 2 SECTION 1 – GENERAL PROVISIONS (CONCILIATION) It is under Section 1 where the Principles of Dispute Settlement Mechanism are laid down: 1.The obligations of the parties to settle their disputes by simple means; 2.The parties are free to choose the means of settlement of their preference; 3.The procedures under Part XV apply only when the choice of the parties has been unsuccessful in bringing a final resolution or when the time designated for that has lapsed. SECTION 2 – COMPULSORY PROCEDURES ●Residual procedures – in that they are applicable only in default of other procedures acceptable to the parties; ●Resort to Section 2 take place only when after attempting settlement under Section 1 has proven unsuccessful; ●Article 287 and 288 constitute the core of Section 2, providing respectively the famous choice of procedure (which actually is a choice of mechanism, mean or institution rather than procedure) and the scope of jurisdiction. VARIOUS MEANS TO SETTLE DISPUTES UNDER SECTION 2 (Art. 287) – freedom to select means (one or more mechanisms)

to settle disputes that have not been solved under Section 1: - International Court of Justice (ICJ) - International Tribunal on the Law of the Seas (ITLOS) -Arbitration (also considered Default mechanism, that is, where no choice was made or when parties to a dispute have divergent choices) -Special Arbitration (Art. 288) – Jurisdiction comprises any dispute concerning the interpretation or application of UNCLOS, as well as of an international agreement related to the purposes of UNCLOS, which is substituted to it in accordance with the agreement SECTION 3– EXCEPTIONS AND LIMITATIONS TO THE SYSTEM OF COMPULSORY JURISDICTION UNDER SEC. 2 1. AUTOMATIC EXCEPTIONS (ART. 297) a. Disputes which deals with the submission of claims against the exercise of sovereign rights or jurisdiction by the coastal state shall be subject to Section 2 when it falls under the following three categories: i. When it is alleged that the coastal state transgressed the convention’s provisions on the freedoms and rights of navigation, overflight or laying of submarine cables and pipelines and any other internationally lawful uses of the sea allowed in its EEZ; ii. When it is a third state that has contravened the convention or the laws and regulations of a coastal state in the exercise of those freedoms and rights; and When it is alleged that a coastal state has acted in contravention of international rules and standards for the protection and preservation of the marine environment either established under the convention or through a competent international organization (e.g. International Maritime Organization). Therefore, by necessary implication, any other case not included in the above list is excluded from compulsory jurisdiction under Sec. 2. Disputes which deals with marine scientific research;

➢ Art. 246 states what maritime scientific research activities are; ➢ It then provides for the limitation that the coastal state is not obliged to accept the submission for settlement of any dispute arising out of its discretionary right under Art. 246 and its power to suspend marine scientific research in accordance to Article 253; ▪ However, despite the above-limitation, third states are given the right to resort to “compulsory conciliation” under Annex V; Disputes which deals with fisheries ➢ Coastal state is not obliged to allow the submission of a dispute relating to its sovereign rights with respect to the living resources and discretionary management and conservation’s powers, including the contents of related domestic legislation; ➢ Similarly, a third state can institute “compulsory conciliation” under the same conditions as in par. 2. OPTIONAL EXCEPTIONS (Art. 298) – EXCLUDED BY WRITTEN DECLARATION: a. Disputes concerning maritime delimitation and historic titles • RATIONALE FOR EXCLUSION: when a declaration to be excluded under sec. 2 is made, the consequence is that the state is obliged to submit itself to “compulsory conciliation” under Annex V; • This makes reaching an agreement completely dependent on the will of both parties, hence it has been labeled as mere pactum de contrahendo. Disputes concerning military and law enforcement activities in regard to the exercise of sovereign rights or jurisdiction (with regard to maritime scientific research and fisheries) • RATIONALE FOR EXCLUSION: the exclusion touches a highly sensitive area and the reason for its existence can hardly be questioned, at least under the current status of international law. Disputes in respect of which the Security Council of the United Nations is exercising its functions

Note: Although Sec. 3 puts in place by means of Art. 297 and 298 the previously stated categories of disputes away from the reach of means of dispute settlement set forth in Sec. 2, Art. 299 preserves the right of the parties, still, to resort to any mean of their own choice to settle those disputes. FOUR ANNEXES WHICH ARE INTEGRAL PART OF PART XV: ANNEX V – CONCILIATION - Two modalities: 1. Parties’ freedom to choose under Section 1 2. Compulsory conciliation (that is, the only compulsory mean to settle disputes that are covered by the exceptions) -Non-binding mean -The only mean available to parties when disputes are excluded from compulsory settlement WAY TO INSTITUTE PROCEEDINGS: ●By writing to the other party or parties ●In such notification, the instituting party should nominate two conciliators, preferably from the list maintained by the Secretary General of the UN; one of them may be its national ●Within 21 days from notification, the other party has to appoint its own two conciliators following the same rule. If the appointment is not made, within one week after the expiry of the 21-day period, the other party can request the Secretary General to do the corresponding appointments or terminate the procedure by notification to the other party ●Within 30 days from last nomination, the 4 conciliators have to nominate a chairperson (from UN list), completing the conciliation commission. Otherwise, any of the party may request the Secretary General to fulfill his obligation following the same rules as above described. Report of the conciliation commission is NONBINDING! � If an agreement is reached but one of the parties rejects the conclusions or three months have lapsed after the deposit of the report with the Secretary General, the conciliation process is deemed terminated; COMPULSORY CONCILIATION � All the above rules are applicable

� The only difference is that the passive party cannot resist the conciliation process from happening (as it could in conciliation by rejecting it and therefore resulting to termination); failure to act is not a bar for the proceedings to take place. ANNEX VI – ITLOS -Closely modeled after that of ICJ -Number of judges – 21 (vis-à-vis ICJ which has 15) -It has jurisdiction over States, other juridical persons and individuals ANNEX VII – ARBITRATION -Default mechanism (an ad hoc procedure) -Compose of 5 Arbitrators -The institution of proceedings is made by one party by a written notification to the other party to the dispute, accompanied by a statement of the claim and the ground on which it is based, as well as the name of its chosen arbitrator (who can be its own national); -The other party within 30 days from receipt of notification shall nominate its own arbitrator; -Both nominations are to be made preferably from the list of kept by the Secretary General) -If the notified party does not act within 30 days, the other party can request the President of ITLOS, as appointing authority, to make the necessary appointment who has to do so, in consultation with the parties, in the following 30 days; The three remaining arbitrators have to be nominated by agreement of the parties (none of whom can be their own national) no later than 60 days from the original notification that instituted the arbitration; - From those three remaining arbitrators, none of which must be a national of the parties, the president must be elected by common agreement. Otherwise, any of the parties can ask the President of ITLOS to make the necessary appointments from the referred list. -The decision of the arbitration tribunal shall be taken by majority and the absence or abstention of less than the half of the tribunal is no bar for the tribunal to take action. -The President has a casting vote in case of a tie. -Arbitrators are not required to be lawyers or jurists (simply expert in maritime affairs); The award is final and without appeal unless beforehand the parties decided on an appellate procedure. -Parties owe full cooperation to the tribunal and under such obligation they have to

provide it with all relevant documents, facilities and information, and to call witnesses, experts and receive evidence and to visit localities as the case requires, all of these under each parties domestic law and all means at their disposal. -They also have to cover the expenses and remuneration of the tribunal by equal shares. -If a party does not appear or fails to defend its case, the tribunal can be asked by the other party to continue the proceedings and to deliver an Award, prior to which the tribunal must satisfy itself of having jurisdiction and that the claim is well based in fact and law. ANNEX VIII – SPECIAL ARBITRATION -Applies when dispute settlement calls for functional solution (that is, not allencompassing solution) -It covers four areas: 1. Fisheries 2. protection and preservation of the marine environment 3. Maritime Scientific Research 4. navigation including pollution from vessels and by dumping -The procedure follows Annex VII mutatis mutandis Philippines’ National Territory and UNCLOS Archipelagic Doctrine Under the Philippine Constitution 1935 CONSTITUTION ●The Philippines comprises all the territory ceded to the United States by: � Treaty of Paris (between US and Spain on December 10, 1898 – the limits of which are set forth in Article III of said treaty); � Treaty concluded in Washington (between US and Spain on Nov. 7, 1900 – to include: Islands of Sibutu and Cagayan de Sulu); � Treaty bet. US and Great Britain on Jan. 2, 1930 (to include: Turtle and Mangsee Islands) Note: Incl. Batanes over which Phils. exercise jurisdiction. 1973 CONSTITUTION The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all the

other territories belonging to the Philippines by historic right or legal title, including the territorial sea, the air space, the subsoil, the seabed, the insular shelves and the submarine areas over which the Philippines has sovereignty or jurisdiction. The waters around, between and connecting the islands of the archipelago, irrespective of their breadth and dimensions, form part of the INTERNAL WATERS of the Phils. The concept of Archipelagic Doctrine as stated under the second sentence of the 1973 Philippine Constitution is that “the waters around, between, and connecting the islands of the archipelago irrespective of their breadth and dimensions, form part of the internal waters of the Philippines.” ● This is intended to project the idea that the Philippines is an archipelago and bolster the archipelagic concept which the Philippines, together with Indonesia, Mauritius, Fiji and other archipelago states similarly situated. ● This provision was retained under the 1987 Constitution. Archipelagic Doctrine Under UNCLOS Art. 46 defines an archipelago as: “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 from an intrinsic geographical, economic and political entity, or which historically have been regarded as such.” ● Art. 47(1) provides that: “an archipelagic state may draw straight archipelagic baselines joining the outermost posts of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands x x x” ● Art. 47(2) provides that: “the length of such baselines shall not exceed 100 NM, except that up to 3% of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125NM.”

● Art. 47(3) provides that: “the drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago. Art. 49 provides for the legal status of archipelagic waters: “x x x the sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic baselines x x x described as archipelagic waters x x x” ● Art. 52 states the right of innocent passage: “x x x ships of all States enjoy the right of innocent passage through archipelagic waters xxx” ● Art. 53 states the right of archipelagic sea lanes passage: “an Archipelagic State may designate sea lanes and air routes thereabove, suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea. ● The Philippines ratified UNCLOS in Feb. 27, 1984. INTERNAL WATERS VS. ARCHIPELAGIC WATERS Fr. Ranhillo Aquino of the San Beda Graduate School of Law explained that: �Art. 47 of UNCLOS now provides for straight baselines drawn by connecting the outermost points of the islands where a state is archipelagic. �There is however a limit of 100 to 125 miles between the islands of an archipelago; that is to say, when one island is beyond this limit, it is not to be connected with an imaginary straight line to the rest of the archipelago but is to have its own territorial sea. Despite the said limit, it remains a fact that because of the archipelagic doctrine, stretches of sea that would otherwise be high seas may now be well within the baselines. �And because of this, Art. 49 provides that the waters landward of archipelagic baselines shall be considered ARCHIPELAGIC WATERS over which there is a right of innocent passage over sealanes drawn by the state itself. The Philippine participants to UNCLOS in March 1987 objected to this considering that under the Philippine

constitution, the waters around, between and connecting the islands of the archipelago are regarded as INTERNAL WATERS (which is not subject to right of innocent passage). • Philippine participants appended to the treaty the country’s “DECLARATION” which maintained that signing by our delegates was without prejudice to the claims we maintained under our constitution. • USSR registered an objection, arguing that the Philippine declaration was in effect an attempt to contravene the very purpose and intent of UNCLOS and was therefore, by the law of treaties, a nullity. Clearly then, under UNCLOS, the Philippines cannot treat the waters between the Batanes group of islands and Aparri as “internal waters” but as “archipelagic waters” and thus the rights enjoyed by foreign ships in regard to archipelagic waters must be sustained. THE CORFU CHANNEL CASE (UK VS. ALBANIA, 1949 ICJ REP. 428) �Facts: A squadron of British ships left the Port of Corfu and started navigating through a channel in the Straight of North Corfu (in Albanian Territorial waters) when two of the British ships hit mines and were damaged; Issues: �1) what liabilities, if any, accrue to Albania and what damages is she responsible for in terms of loss of life and destruction? �2) Did the UK violate international law by navigating through Albanian territorial waters without first having secured Albanian consent? Held: � Albania is liable. It had an obligation to warn vessels about existence of a minefield in its territorial waters. This obligation rests on elementary considerations of humanity as well as on the principle of the freedom of maritime communication. � UK did not violate international law. In time of peace, States have a right to send their water ships through straits used for international navigation between two parts

of the high seas without the previous authorization of a coastal state, provided that the passage is innocent. PHILIPPINE BASELINE LAW (Magallona vs. Ermita, GR 187167, Aug. 16, 2011) The Philippine Congress enacted RA 9522 (Philippine Baseline Law) to make RA 3046 compliant with the terms of UNCLOS: � It shortened one baseline � It optimized the location of some basepoints around the Philippine archipelago � It classified adjacent territories, namely the Kalayaan Island Group (KIG) and the Scarborough Shoal, as “REGIME OF ISLANDS” whose islands generate their own applicable maritime zones. Dean Merlin Magallona of UP College of Law posits that: � RA 9522 formally assumed the status of the Philippines as an “archipelagic state” under UNCLOS; � Consequently, all waters landward of those baselines are declared “archipelagic waters” which is contrary with the Constitution proclaiming them as “internal waters” � Under UNCLOS, “archipelagic waters” are subject to the “right of innocent passage of all ships of all States” without need of express permission from archipelagic state. � On the other hand, under the Constitution, navigation by foreign ships over “internal waters” are allowed only by express permission. Dean Magallona feared that such categories of ships as warships, submarines, nuclear-powered ships and ships loaded with toxic or noxious materials could now navigate over our internal waters under the right to innocent passage in accordance with UNCLOS. �According to him, this contravenes the country’s nuclear-free policy, and the protection of marine resources, in violation of relevant constitutional provisions. SC ruled that: • Whether referred to as Philippine internal

waters (under the constitution) or as archipelagic waters (under UNCLOS), the Philippines exercises sovereignty over the body of water lying landward of the baselines, including the air space over it and the submarine areas underneath. UNCLOS affirms this under Art. 49. That the fact of sovereignty does not preclude the operation of municipal and international law norms subjecting our archipelagic waters to necessary burdens in the interest of maintaining unimpeded, expeditious international navigation, consistent with the international law principle of FREEDOM OF NAVIGATION. THUS • Under Municipal law, SC cited a pending bill in Congress establishing archipelagic sea lanes in the Philippine archipelagic waters; • In the absence of municipal law, international law norms now codified in UNCLOS operates to grant innocent passage rights over archipelagic waters. It also pointed out that the right to innocent passage is a customary international law. SC explained that no modern state can validly invoke its sovereignty to absolutely forbid innocent passage that is exercised in accordance with customary international law without risking retaliatory measures from the international community. • It explained further that the imposition of these passage rights through archipelagic waters under UNCLOS was a concession by archipelagic states, in exchange for their right to claim all the waters landward of their baselines, regardless of their depth or distance from the coast, as archipelagic waters subject to their territorial sovereignty. According to the SC, UNCLOS favors the Philippines by: �Creating a sui generis maritime zone – the EEZ – in waters previously part of the high seas; �Granting new rights to the Philippines to exclusively exploit the resources found within this zone up to 200 NM; Other Issues: Magallona vs. Ermita Dean Merlin Magallona of UP College of Law posits that:

� RA 9522 dismembers a large portion of the national territory because it discards the pre-UNCLOS demarcation of Philippine territory under the Treaty of Paris and related treaties. � SC disagreed. • UNCLOS has nothing to do with the acquisition or loss of territory • Rather, it is a multilateral treaty regulating seause rights over maritime zones • On the other hand, RA 9522 was enacted to mark-out specific basepoints along theirs coasts from which baselines are drawn, to serve as geographic starting points to measure the breadth of the maritime zones and continental shelf. • Baseline are nothing but statutory mechanisms for UNCLOS. UNCLOS and RA 9522 play no role in the acquisition, enlargement or diminution of territory.

�Under traditional international law typology, states acquire or lose territory through: • Occupation • Accretion • Cession • Prescription AND NOT BY MULTILATERAL TREATIES! ACKNOWLEDGMENT: ● The Archipelago Concept in the Law of the Sea: Problems And Perspectives by Miriam Defensor –Santiago (published in the Philippine Law Journal); ● Primer on UNCLOS by Ferdinand Golez (Philippine Navy); ● Dispute Settlement Provisions of UNCLOS by Lesther Antonio Ortega Lemus; ● Issues in Public International Law by Fr. Ranhilio Callangan Aquino; ● Magallona vs. Executive Secretary, GR 187167, Aug. 16, 2011; ● Philippine Baseline Law (R.A. 9522); ● Administrative Order No. 29, Series of 2012