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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
conventions 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 conservations 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--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 countrys
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
countrys
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