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forbid innocent passage that is exercised in accordance with customary international law without risking
retaliatory measures from the international community.
c. The classification of the KIG (or the Spratlys), as well as the Scarborough Shoal, as a regime of islands
did not diminish our maritime area. Under UNCLOS and under the baselines law, since they are regimes
of islands, they generate their own maritime zones in short, they are not to be enclosed within the
baselines of the main archipelago (which is the Philippine Island group). This is because if we do that,
then we will be enclosing a larger area which would already depart from the provisions of UNCLOS
that the demarcation should follow the natural contour of the archipelago.
Nevertheless, we still continue to lay claim over the KIG and the Scarborough Shoal through effective
occupation.
NOTES:
Under UNCLOS and the baselines law, we have three levels of maritime zones where we exercise treatybased rights:
a. territorial waters 12 nautical miles from the baselines; where we exercise sovereignty
b. contiguous zone 24 nautical miles from the baselines; jurisdiction where we can enforce customs,
fiscal, immigration, and sanitation laws (CFIS).
c. exclusive economic zone 200 nautical miles from the baselines; where we have the right to exploit the
living and non-living resources in the exclusive economic zone
Note: a fourth zone may be added which is the continental shelf this is covered by Article 77 of the
UNCLOS.
1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.
2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone and the continental shelf of an island are
determined in accordance with the provisions of the Convention applicable to other land territory.
3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or
continental shelf.
Islands can be very important because of the possibility of exploiting oil and gas resources around them. This explains the
controversy over Spratleys. It is noteworthy that islands can have their own territorial sea, exclusive economic zone and
continental shelf. However, rocks which cannot sustain human habitation or economic life only have a territorial sea.
But there is no clear international law definition of economic life referred to in n. 3.
Artificial islands or installations are not islands in the sense of Article 121. However, coastal states may establish safety
zones around artificial islands and prescribe safety measures around them. (Article 60[4] and [5])
While in many cases it serves as a stabilizing factor in the international system, and can even be
called a force for good, international law cannot be considered law when applied to states or state
action. To be considered law these principles and decisions require enforcement mechanisms that
go beyond state consent or the trust and goodwill among parties to a treaty. Law must also create a
true obligation rather than serve as a convenient means to an end as it does for most states in the
current system.
As it stands now, states obligations are outlined in treaties and customs, but enforcement relies on
vague clauses and empty threats found within the documents, or in international bodies like the UN
Security Council (UNSC) where power asymmetries grant the more powerful states significant
influence. Consent is very important, but international laws status as law cannot rest on consent
alone. As rational, unitary actors, states make decisions that are in their best interests, and more
often than not, consenting to various conventions and treaties is in a states interest, but that consent
can be rescinded as soon as the states priorities change or a better option appears. When
considering the sources of international law, one finds that general principles are usually shifting and
too vague to form the basis of an international legal system; customary law is based on state practice
and opinio juris which can be mistakenly ascribed to a state merely taking a course of action
because it is convenient for the time being; and treaties are only enforceable so long as one party or
group of parties is strong enough to impose compliance on another. Examples of the latter can be
found during the decades when Cold War rivalries held the UNSC hostage. It is at times like these
when the system more closely resembles a political protection racket than an international legal
regime.
TANADA v. ANGARA
October 26, 2012 Leave a comment
Facts :
This is a petition seeking to nullify the Philippine ratification of the World Trade Organization (WTO)
Agreement. Petitioners question the concurrence of herein respondents acting in their capacities as
Senators via signing the said agreement.
The WTO opens access to foreign markets, especially its major trading partners, through the reduction
of tariffs on its exports, particularly agricultural and industrial products. Thus, provides new
opportunities for the service sector cost and uncertainty associated with exporting and more
investment in the country. These are the predicted benefits as reflected in the agreement and as
viewed by the signatory Senators, a free market espoused by WTO.
Petitioners on the other hand viewed the WTO agreement as one that limits, restricts and impair
Philippine economic sovereignty and legislative power. That the Filipino First policy of the Constitution
was taken for granted as it gives foreign trading intervention.
Issue : Whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the Senate in giving its concurrence of the said WTO agreement.
Held:
In its Declaration of Principles and state policies, the Constitution adopts the generally accepted
principles of international law as part of the law of the land, and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity , with all nations. By the doctrine of incorporation,
the country is bound by generally accepted principles of international law, which are considered
automatically part of our own laws. Pacta sunt servanda international agreements must be performed
in good faith. A treaty is not a mere moral obligation but creates a legally binding obligation on the
parties.
Through WTO the sovereignty of the state cannot in fact and reality be considered as absolute because
it is a regulation of commercial relations among nations. Such as when Philippines joined the United
Nations (UN) it consented to restrict its sovereignty right under the concept of sovereignty as
autolimitation. What Senate did was a valid exercise of authority. As to determine whether such
exercise is wise, beneficial or viable is outside the realm of judicial inquiry and review. The act of
signing the said agreement is not a legislative restriction as WTO allows withdrawal of membership
should this be the political desire of a member. Also, it should not be viewed as a limitation of
economic sovereignty. WTO remains as the only viable structure for multilateral trading and the
veritable forum for the development of international trade law. Its alternative is isolation, stagnation if
not economic self-destruction. Thus, the people be allowed, through their duly elected officers, make
their free choice.
Petition is DISMISSED for lack of merit
ARTICLE I
NATIONAL TERRITORY
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.
jus soli - the "law (or right) of the soil" - the legal principle that an individual's
nationality is determined by that person's place of birth (that is, the territory of
a given state)
Contrast to jus sanguines
lacunae - "holes" in the law; a gap or blank in a writing.
lex communis - the common law; the body of law developed by human
practice.
lex lata - what the law is (as opposed to what the law ought to be, de lege
ferenda).
lex posterior derogat priori - more recent law prevails over (abrogrates,
overrrules, trumps) an inconsistent earlier law. One test that is applied in
circumstances when (1) both customary and treaty sources of law exist and
(2) these two sources cannot be construed consistently.
Contrast to lex specialis derogat generali .
lex scripta - written, "black letter" law
lex specialis derogat generali - specific law prevails over (abrogrates,
overrrules, trumps) general law. One test that is applied in circumstances
when (1) both customary and treaty sources of law exist and (2) these two
sources cannot be construed consistently.
Contrast to lex posterior derogat priori.
locus delicti - The place of the offense.
male captus, bene detentus - "badly captured, well detained," the legal
principle that permits the trial of an improperly seized defendant; in U.S.
practice, articulated by the "Ker-Frisbie doctrine"
mare clausum - closed seas; as opposed to mare liberum (freedom of the
seas)