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UNITED NATIONS CONVENTION ON THE LAW ON

SEAS AND THE PHILIPPINES

Public International Law


T 4:30-7:30

SUBMITTED TO:

DEAN ATTY. Porfirio D.G. Panganiban

SUBMITTED BY:

BARUIZ, Breniz Grexymae


BESA, Denard Kevin
CAAVERAL, Cape Quesie
GORGONIA, Sheila Jean
MARTINEZ, John Alfred
VENTURA, Derenze Gail

HISTORY (Start Sheila)


The 1982 United Nations Convention on the Law of the Sea (UNCLOS) creates a
comprehensive regime governing the rights of nations with respect to the worlds oceans. It
addresses economic zones of the sea, continental shelf, rights to the deep seabed, navigational
rights in territorial and high seas, conservation and management of the living resources of the
sea, protection and preservation of the marine environment.
The UNCLOS replaces the older and weaker 'freedom of the seas' concept, dating from
the 17th century: national rights were limited to a specified belt of water extending from a
nation's coastlines, usually three nautical miles, according to the 'cannon shot' rule developed by
the Dutch jurist Cornelius van Bynkershoek. All waters beyond national boundaries were
considered international waters: free to all nations, but belonging to none of them (the mare
liberum principle promulgated by Grotius).1
In the early 20th century, some nations expressed their desire to extend national claims: to
include mineral resources, to protect fish stocks, and to provide the means to enforce pollution
controls. (The League of Nations called a 1930 conference at The Hague, but no agreements
resulted.) Using the customary international law principle of a nation's right to protect its natural
resources, President Truman in 1945 extended United States control to all the natural resources
of its continental shelf. Other nations were quick to follow suit. Between 1946 and 1950, Chile,
Peru, and Ecuador extended their rights to a distance of 200 nautical miles (370 km) to cover
their Humboldt Current fishing grounds. Other nations extended their territorial seas to 12
nautical miles (22 km).2
By 1967, only 25 nations still used the old 3-mile (4.8 km) limit, while 66 nations had set a 12nautical-mile (22 km) territorial limit and eight had set a 200-nautical-mile (370 km) limit. As of
28 May 2008, only two countries still use the 3-mile (4.8 km) limit: Jordan and Palau. That limit
is also used in certain Australian islands, an area of Belize, some Japanese straits, certain areas of
Papua New Guinea, and a few British Overseas Territories, such as Anguilla.3

1
https://en.wikipedia.org/wiki/United_Nations_Convention_on_the_Law_of_the_Sea#Hi
storical_background
2 Ibid.
3 Ibid.

TERRITORIAL SEA AND CONTIGUOUS ZONE


I.

Territorial Sea
Sovereignty of coastal state extends, beyond its land territory and internal waters. In the

case of an archipelagic State, its archipelagic waters, which is an adjacent belt of sea, it is
described as the territorial sea.
Moreover, coastal State sovereignty extends to the air space over the territorial sea as
well as to its bed and subsoil 4. Sovereignty over territorial sea is exercised subject to this
Convention and to other rules of international law
II.

Limits to the Territorial Sea


Every state has the right to establish the breadth of its territorial sea up to a limit not

exceeding 12 nautical miles measured from baselines measured from baselines determined in
accordance with this Convention5. Outer limit of territorial sea is the line every point of which is
at a distance from the nearest point of the baseline equal to the breadth of the territorial sea6.
Furthermore, normal baseline for measuring the breadth of the territorial sea is the lowwater line along the coast as marked on large-scale charts officially recognized by the Coastal
State7.
III.

Internal Waters and Territorial Sea

4 Par. 2, Article 2, UNCLOS


5 Article 3, UNCLOS
6 Article 4, UNCLOS
7 Article 5, UNCLOS

In the navigation of internal waters, the UNCLOS is not applicable except where
establishment of baseline encloses new internal waters. On the other hand, navigation in the
territorial sea, innocent passage and warships are applicable. However, the UNCLOS is not
applicable with regard to overflight, fishing, laying submarine cable and minining. In addition,
the coastal States consent is required with regard to scientific research.8
IV.

Right of Innocent Passage


Passage means navigation through the territorial sea for the purpose of:
a) traversing that sea without entering internal waters or calling at a roadstead or
port facility outside internal waters; or
b) proceeding to or from internal waters or a call at such roadstead or port facility.9

Ships of all States, whether coastal or land-locked, shall enjoy the right of innocent passage
through the territorial sea10.
Passage is innocent so long as it is not prejudicial to the peace, good order or security of
the coastal state. Moreover, such passage shall take place in conformity with this convention and
with other rules of international law11. Passage of a foreign ship shall be considered to be
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:
a) 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 Charter of the United Nations;
b) any exercise or practice with weapons of any kind;
c)

any act aimed at collecting information to the prejudice of the defence or security of
the coastal State;

8 http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
9 Article 17, UNCLOS
10 Ibid.
11 Article 19, UNCLOS

d) any act of propaganda aimed at affecting the defence or security of the coastal State;
e) the launching, landing or taking on board of any aircraft;
f) the launching, landing or taking on board of any military device;
g) 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;
h) any act of wilful and serious pollution contrary to this Convention;
i) any fishing activities;
j) the carrying out of research or survey activities;
k) any act aimed at interfering with any systems of communication or any other facilities
or installations of the coastal State;
l) any other activity not having a direct bearing on passage.
Article 18 defines passage as a means of navigation through the territorial sea for the
purpose of:
a) Traversing that sea without entering internal waters or calling at a roadstead or port
facility outside internal waters; or
b) Proceeding to or from internal waters or a call at such roadstead or port facility.
Furthermore, passage must be continuous and expeditious12, with the exceptions, to wit:
delayed passage incidental to ordinary navigation; Force majeure or distress; to render assistance
to persons, ships, or aircraft in danger or distress.
In accordance with such doctrine, certain rights are possessed by the State, such as:
Nuclear ships and ships carrying dangerous materials must carry documents and take
precautions13; the state may also adopt regulations in the areas enumerated therein 14; they may
establish sea lanes15, prevent passage which is not innocent and breach of conditions16; Arrest

12 Article 18, UNCLOS


13 Article 23, UNCLOS
14 Article 21, UNCLOS

and investigation can take place as specified in Art 27 and Art. 28; Charges may be levied for
specific services rendered17; Submarines must navigate on surface and show flag18;
Furthermore, Coastal State may suspend the right of innocent passage as long as such
suspension:
a.
b.
c.
d.
e.

does not discriminate among foreign ships, in form or in fact


temporary
specifies the areas where innocent passage shall not be allowed
essential for its security
duly published

Lastly, activities not having direct bearing on passage are not regarded as innocent19.
The Corfu Channel Case (United Kingdom of Great Britain and Northern IrelandAlbania) is a landmark case heard by the International Court of Justice and adjudged on April 9,
1949. Such event arose from the incidents that occurred on October 22, 1946 in the Corfu Strait.
FACTS:
On October 22nd, 1946, two British cruisers and two destroyers, coming from the south,
entered the North Corfu Strait. The channel they were following, which was in Albanian waters,
was regarded as safe: it had been swept in 1944 and check-swept in 1945. One of the destroyers,
the Saumarez, when off Saranda, struck a mine and was gravely damaged. The other destroyer, the
Volage, was sent to her assistance and, while towing her, struck another mine and was also
seriously damaged. Forty-five British officers and sailors lost their lives, and forty-two others were
wounded.
An incident had already occurred in these waters on May 15th, 1946: an Albanian battery had
fired in the direction of two British cruisers. The United Kingdom Government had protested,
stating that innocent passage through straits is a right recognized by international law; the Albanian

15 Article 22, UNCLOS


16 Article 25, UNCLOS
17 Article 26, UNCLOS
18 Article 20, UNCLOS
19 Article 19, UNCLOS

Government had replied that foreign warships and merchant vessels had no right to pass through
Albanian territorial waters without prior authorization; and on August 2nd, 1946, the United
Kingdom Government had replied that if, in the future, fire was opened on a British warship
passing through the channel, the fire would be returned. Finally, on September 21st, 1946, the
Admiralty in London had cabled to the British Commander-in-Chief in the Mediterranean to the
following x effect: "Establishment of diplomatic relations with Albania is again under consideration
by His Majesty's Government who wish to know whether the Albanian Government have learnt to
behave themselves. Information is requested whether any ships under your command have passed
through the North Corfu Strait since August and, if not, whether you intend them to do so shortly."
After the explosions on October 22nd, the United Kingdom Government sent a Note to Tirana
announcing its intention to sweep the Corfu Channel shortly. The reply was that this consent would
not be given unless the operation in question took place outside Albanian territorial waters and
that any sweep undertaken in those waters would be a violation of Albania's sovereignty.
The sweep effected by the British Navy took place on November 12th/13th 1946, in Albanian
territorial waters and within the limits of the channel previously swept. Twenty-two moored mines
were cut; they were mines of the German GY type.
The first question put by the Special Agreement is that of Albania's responsibility, under
international law, for the explosions on October 22nd, 1946.
The Court finds, in the first place, that the explosions were caused by mines belonging to the
minefield discovered on November 13th. It is not, indeed, contested that this minefield had been
recently laid; it was in the channel, which had been previously swept and check-swept and could be
regarded as safe, that the explosions had taken place. The nature of the damage shows that it was
due to mines of the same type as those swept on November 13th; finally, the theory that the mines
discovered on November 13th might have been laid after the explosions on October 22nd is too
improbable to be accepted.
In these circumstances the question arises what is the legal basis of Albania's responsibility?
The Court does not feel that it need pay serious attention to the suggestion that Albania herself laid
the mines: that suggestion was only put forward pro memoria, without evidence in support, and
could not be reconciled with the undisputed fact that, on the whole Albanian littoral, there are only
a few launches and motor boats. But the United Kingdom also alleged the connivance of Albania:
that the mine laying had been carried out by two Yugoslav warships by the request of Albania, or
with her acquiescence. The Court finds that this collusion has not been proved. A charge of such
exceptional gravity against a State would require a degree of certainty that has not been reached
here, and the origin of the mines laid in Albanian territorial waters remains a matter for
conjecture.
The United Kingdom also argued that, whoever might be the authors of the mine laying, it
could not have been effected without Albania's knowledge. True, the mere fact that mines were laid
in Albanian waters neither involves prima facie responsibility nor does it shift the burden of proof.

On the other hand, the exclusive control exercised by a State within its frontiers may make it
impossible to furnish direct proof of facts which would involve its responsibility in case of a
violation of international law. The State which is the victim must, in that ease, be allowed a more
liberal recourse to inferences of fact and circumstantial evidence; such indirect evidence must be
regarded as of especial weight when based on a series of facts, linked together and leading
logically to a single conclusion.
In the present case two series of facts, which corroborate one another, have to be
considered.
The first relates to the Albanian Government's attitude before and after the catastrophe. The
laying of the mines took place in a period in which it had shown its intention to keep a jealous
watch on its territorial waters and in which it was requiring prior authorization before they were
entered, this vigilance sometimes going so far as to involve the use of force: all of which render the
assertion of ignorance a priori improbable. Moreover, when the Albanian Government had become
fully aware of the existence of a minefield, it protested strongly against the activity of the British
Fleet, but not against the laying of the mines, though this act, if effected without her consent, would
have been a very serious violation of her sovereignty; she did not notify shipping of the existence of
the minefield, as would be required by international law; and she did not undertake any of the
measures of judicial investigation which would seem to be incumbent on her in such a case. Such
an attitude could only be explained if the Albanian Government, while knowing of the mine laying,
desired the circumstances in which it was effected to remain secret.
The second series of facts relates to the possibility of observing the mine laying from the
Albanian coast. Geographically, the channel is easily watched: it is dominated by heights offering
excellent observation points, and it runs close to the coast (the nearest mine was 500 m. from the
shore). The methodical and well-thought-out laying of the mines compelled the minelayers to
remain from two to two-and-a-half hours in the waters between Cape Kiephali and the St. George's
Monastery. In regard to that point, the naval experts appointed by the Court reported, after enquiry
and investigation on the spot, that they considered it to be indisputable that, if a normal look-out
was kept at Cape Kiephali, Denta Point, and St. George's Monastery, and if the lookouts were
equipped with binoculars, under normal weather conditions for this area, the mine-laying
operations must have been noticed by these coastguards. The existence of a look-out post at Denta
Point was not established; but the Court, basing itself on the declarations of the Albanian
Government that lock-out posts were stationed at other points, refers to the following conclusions
in the experts' report: that in the case of mine laying 1) from the North towards the South, the
minelayers would have been seen from Cape Kiephali; if from South towards the North, they would
have been seen from Cape Kiephali and St. George's Monastery.
ISSUE:
1. Is Albania responsible for the explosions, and is there a duty to pay compensation?

2. Has the United Kingdom violated international law by the acts of its Navy in Albanian waters,
first on the day on which the explosions occurred and, secondly, on November 12th and 13th, 1946,
when it undertook a sweep of the Strait?
In its Judgment the Court declared on the first question, by 11 votes against 5, that Albania was
responsible.
HELD:
From all the facts and observations mentioned above, the Court draws the conclusion that
the laying of the minefield could not have been accomplished without the knowledge of Albania. As
regards the obligations resulting for her from this knowledge, they are not disputed. It was her duty
to notify shipping and especially to warn the ships proceeding through the Strait on October 22nd
of the danger to which they were exposed. In fact, nothing was attempted by Albania to prevent the
disaster, and these grave omissions involve her international responsibility.
The Special Agreement asks the Court to say whether, on this ground, there is "any duty" for
Albania "to pay compensation" to the United Kingdom. This text gave rise to certain doubts: could
the Court not only decide on the principle of compensation but also assess the amount? The Court
answered in the affirmative and, by a special Order, it has fixed dine-limits to enable the Parties to
submit their views to it on this subject.
The Court then goes on to the second question in the Special Agreement: Did the United
Kingdom violate Albanian sovereignty on October 22nd, 1946, or on November 12th/13th, 1946?
The Albanian claim to make the passage of ships conditional on a prior authorization
conflicts with the generally admitted principle that States, in time of peace, have a right to send
their warships through straits used for international navigation between two parts of the high seas,
provided that the passage is innocent. The Corfu Strait belongs geographically to this category,
even though it is only of secondary importance (in the sense that it is not a necessary route between
two parts of the high seas) and irrespective of the volume of traffic passing through it. A fact of
particular importance is that it constitutes a frontier between Albania and Greece, and that a part
of the strait is wholly within the territorial waters of those States. It is a fact that the two States did
not maintain normal relations, Greece having made territorial claims precisely with regard to a
part of the coast bordering the strait. However, the Court is of opinion that Albania would have
been justified in view of these exceptional circumstances, in issuing regulations in respect of the
passage, but not in prohibiting such passage or in subjecting it to the requirement of special
authorization.
Albania has denied that the passage on October 22 was innocent. She alleges that it was a
political mission and that the methods employed - the number of ships, their formation, armament,
manoeuvres, etc. - showed an intention to intimidate. The Court examined the different Albanian
contentions so far as they appeared relevant. Its conclusion is that the passage was innocent both
in its principle, since it was designed to affirm a right which had been unjustly denied, and in its

methods of execution, which were not unreasonable in view of the firing from the Albanian battery
on May 15th.
As regards the operation on November 12th/13th, it was executed contrary to the clearly
expressed wish of the Albanian Government; it did not have the consent of the international mine
clearance organizations; it could not be justified as the exercise of the right of innocent passage.
The United Kingdom has stated that its object was to secure the mines as quickly as possible for
fear lest they should be taken away by the authors of the mine laying or by the Albanian
authorities: this was presented either as a new and special application of the theory of intervention,
by means of which the intervening State was acting to facilitate the task of the international
tribunal, or as a method of self-protection or self-help. The Court cannot accept these lines of
defence. It can only regard the alleged right of intervention as the manifestation of a policy of force
which cannot find a place in international law. As regards the notion of self-help, the Court is also
unable to accept it: between independent States the respect for territorial sovereignty is an
essential foundation for international relations. Certainly, the Court recognises the Albanian
Government's complete failure to carry out its duties after the explosions and the dilatory nature of
its diplomatic Notes as extenuating circumstances for the action of the United Kingdom. But, to
ensure respect for international law, of which it is the organ, the Court must declare that the action
of the British Navy constituted a violation of Albanian sovereignty. This declaration is in
accordance with the request made by Albania through her counsel and is in itself appropriate
satisfaction.
In regard to the second question, it declared by 14 votes against 2 that the United Kingdom
did not violate Albanian sovereignty on October 22nd; but it declared unanimously that it violated
that sovereignty on November 12th/13th, and that this declaration, in itself, constituted appropriate
satisfaction.

V.

CONTIGUOUS ZONE
A zone adjacent to the territorial sea that may not extend beyond 24 nautical miles from

the baselines from which the breadth if the territorial sea is measured20.
Coastal State may exercise control to prevent and punish infringement of its customs,
fiscal, immigration or sanitary laws and regulations committed within its territory or territorial
sea.21

STRAITS USED FOR INTERNATIONAL NAVIGATION


20 Article 33, UNCLOS
21 http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf

The sovereignty or jurisdiction of the States bordering the straits is exercised subject to
this part and to other rules of international law. Regime of passage through straits used for
international navigation shall not affect the legal status of the waters forming such straits or the
exercise of sovereignty or jurisdiction over such waters, air space bed and subsoil. 22

VI.

JURISDICTION OF THE STATE BORDERING THE STRAIT


States bordering straits shall not hamper transit passage and shall give appropriate

publicity to any danger to navigation or overflight within or over the strait of which they have
knowledge. There shall be no suspension of transit passage. Moreover, the state shall adopt laws
and regulations only as enumerated in Article 42. Laws may not discriminate nor undermine the
right of transit passage. Moreover, cooperation with other states with regard to navigational aid
and pollution prevention. There shall be no restrictions on warships. Lastly, provisions on
prevention of pollution from vessels are not applicable unless major damage or threat of major
damage23.
VII.

TRANSIT PASSAGE
Transit passage means the exercise in accordance with this part of the freedom of

navigation and overflight solely for the purpose of continuous and expeditious transit of the strait
between one part of the high seas or an exclusive economic zone and another part of the high
seas or an exclusive economic zone. 24
However, the requirement of continuous and expeditious transit does not preclude
passage through the strait for the purpose of entering, leaving or returning from a State bordering
the strait, subject to the conditions of entry to that State25.
22 Ibid.
23 Article 233, UNCLOS
24 http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
25 Par. 2, Article 38, UNCLOS

All ships and aircraft enjoy the right of transit passage, which shall not be impeded;
except that, if the strait is formed by an island of a State bordering the strait and its mainland,
transit passage shall not apply if there exists seaward of the island a route through the high seas
or through an exclusive economic zone of similar convenience with respect to navigational and
hydrographical characteristics26.
Any activity which is not an exercise of the right of transit passage through a strait
remains subject to the other applicable provisions of this Convention27.
VII.1
Restrictions on Transit Passage for Vessels
The state must observe laws adopted, in accordance with art 42, it must comply with
duties enumerated in Art 39. Moreover, passage must be continuous and expeditious and
comply with international safety and pollution regulations. It must refrain from research
and surveys, it must observe sea lanes and traffic separation schemes and flag states are
liable for vessels entitled to immunity.
Furthermore, the regime of innocent passage shall apply in straits used for
international navigation, excluding from the application of regime of transit passage under article
38, par. 1 and between a part of the high seas or an exclusive economic zone and the territorial
sea of a foreign State. In addition, there shall be no suspension of innocent passage through such
straits28.

ARCHIPELAGIC STATES (Ventura-Gail)


An Archipelagic State is a State constituted wholly by one or more archipelagos and
may include other islands. An Archipelago is 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.29

26 Article 38, UNCLOS


27 Ibid.
28 Par.2, Article 45, UNCLOS

There are two (2) kinds of archipelagos: (1) Coastal Archipelago; and (2) Mid Ocean
Archipelago. A Coastal Archipelago is one situated close to a mainland, and may be considered
part of such mainland while a Mid-Ocean Archipelago are groups of islands situated in the ocean
at such distance from the coasts of firm land (mainland). The Philippines is an example of a MidOcean Archipelago. It emphasizes the unity of land and waters by defining an archipelago either
as a group of island surrounded by waters or a body of water studded with islands. Thus,
baselines are drawn by connecting the appropriate points of the outermost islands to encircle the
islands within the archipelago.

THE ARCHIPELAGIC/ARCHIPELAGO DOCTRINE


By this concept, an archipelago shall be regarded as a single unit, so 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 state, and are subject to its exclusive
sovereignty.
The Philippines adheres to the Archipelagic Doctrine under the second paragraph of
Article I, Section 1 of the 1987 Constitution, which reads:
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.

People v. Wong Cheng


No. L-18924, 19 October 1992
46 Phil. 729
FACTS:
Wong Cheng alias Wong Chun is accused of having illegally smoked opium, aboard the merchant
vessel Changsa of English nationality while the said vessel was anchored in Manila Bay two and
a half miles from the shores of the city.
Wong Cheng contended in a demurrer that the lower court lack jurisdiction of the said crime,
which resulted to the dismissal of the case. The Attorney General filed an appeal that urges the
revocation of the demurrer.
ISSUE:
Whether or not the Philippines Courts have jurisdiction over the crime committed by Wong Cheng
aboard merchant vessels anchored in the Philippine jurisdiction waters.

29 United Nations Convention on the Law of the Sea

HELD:
Yes. The crime in the case at bar was committed in the internal waters of the Philippines thus
having acquired the right of jurisdiction over the offense committed. The court said: Having the
opium smoked within our territorial limits, even though aboard a foreign merchant ship, is a
breach of the public order because it causes such drugs to produce pernicious effects within our
territory. The demurrer is revoked and the court ordered further proceedings.

ARCHIPELAGIC BASELINES
Article 47 of the United Nations Convention on the Law of Sea provided some rules
governing baselines. First, such baselines should not depart radically from the general direction
of the coast, or from the general configuration of the archipelago. Second, within the baselines
are included the main islands. The area of such is measured by water area to land area in the ratio
of 1:1 as minimum and 9:1 as maximum. Lastly, the length of baselines shall not exceed 100
nautical miles, except that up to three percent (3%) of the total number of baselines may have a
maximum length of 125 nautical miles.30
By this, the waters inside the baselines are considered internal waters and the territorial sea,
contiguous zone, exclusive economic zone and the continental shelf are measured from such
baselines. The Archipelagic State exercises sovereign rights over all the waters enclosed by the
baselines.

RIGHT OF THE ARCHIPELAGIC SEA LANES PASSAGE


The right of archipelagic sea lanes passage is the right of foreign ships and aircraft to
have continuous, expeditious and unobstructed passage in sea lanes and air routes through or
over the archipelagic waters and the adjacent territorial sea of the archipelagic state, in transit
between one part of the high seas or an exclusive economic zone.
The sea lanes and air routes shall traverse the archipelagic waters and the adjacent
territorial sea and shall include all normal passage routes for international navigation or
overflight through or over archipelagic waters and, within such routes, so far as ships are
concerned, all navigational channels, provided that duplication of routes of similar convenience
between the same entry and exit points shall not be necessary.
Unlike the exercise of the right to innocent passage in the territorial sea, all the ships
even warships, including submarinesare entitled to the right of archipelagic sea lanes passage.
30 United Nations Convention on the Law of the Sea

The archipelagic sea lanes passage is similar to transit passage as they both define the
rights of navigation and overflight in the normal mode solely for the purpose of continuous,
expeditious and unobstructed transit. In both cases, the archipelagic state cannot suspend
passage.

EXCLUSIVE ECONOMIC ZONE


The Exclusive Economic Zone (EEZ) or Patrimonial Sea is an area extending not
more than 200 nautical miles beyond the baseline. In effect, the coastal state has rights over the
economic sources of the sea, seabed and subsoil, however, the right does not affect the right of
navigation and overflight of other states.

DELIMITATION
There can be instances when the exclusive economic zones of adjacent states overlap.
This overlapping exclusive economic zones are settled through delimitation which is determined
by agreement.
Anglo-Norwegian Fisheries Case
(United Kingdom v. Norway), 1951 ICJ Rep. 116, 18 December 1951
FACTS:
Differences have from time to time arisen between the Government of the United Kingdom and the
Norwegian Government relating to the limits at sea within which the Norwegian Government are
entitled to reserve fishing exclusively to Norwegian vessels.
On 1935, a Norwegian Royal Decree was promulgated delimiting the Norwegian fisheries zone as
regards a certain northern part of Norway. For this purpose, it provided certain baselines, and
from these baselines the limits are to be based from a given distance to seaward, larger than the
previous 1933 red line agreed upon by the parties.
The Government of United Kingdom at once disputed the validity under international law of the
limits of the Norwegian fisheries zone prescribed in the 1935 line. The Norwegian Government
refrained from a full enforcement of the 1935 line against British fishing vessels while the United
Kingdom Government continued to observe the red line.
Over time, the dispute between the delimitation of the Norwegian fisheries zone continued.
Subsequent negotiations have failed to achieve an agreement. In this circumstances the
Government of United Kingdom has deemed it appropriate to submit the dispute to the Court.
ISSUE:

Whether or not the lines prescribed by the Royal Decree of 1935 as the baselines for the
delimitation of the fisheries zone have been drawn in accordance with the applicable rules of
international law.
HELD:
Yes. The Court decided that the delimitation is not inconsistent with international laws. It upheld
the Norwegian baseline and stated that the Norwegian territorial waters are measured, not
from the coastline but from baselines drawn between promontories and islands along the coast. It
was indicated that in certain circumstances, this was a proper way of delimiting territorial waters.
It was also confirmed in this case that customary international law has long recognized that
bays can be enclosed by a straight baseline across their mouth.

RIGHTS OF THE COASTAL STATE IN THE EXCLUSIVE ECONOMIC ZONE


In the exclusive economic zone, the coastal state has sovereign right for the purpose of
exploring and exploiting, conserving and managing the natural resources, whether living or nonliving, of the waters superjacent to the seabed and of 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 the water, currents and winds in an area not extending more than 200 nautical
miles beyond the baseline from which the territorial sea is measured. Other rights include the
production of energy from water, currents and winds, the establishment and use of the artificial
islands, installations and structures, marine scientific research and the protection and
preservation of the marine environment.31

PRIMARY OBLIGATIONS OF COASTAL STATES


The coastal states must ensure through proper conservation and management measures that the
living sources of the exclusive economic zone are not subjected to over exploitation and promote
the objective of optimum utilization of the living sources.32

RIGHTS OF OTHER STATES IN THE EXCLUSIVE ECONOMIC ZONE

31 Magallona, Merlin M. (2005). Fundamentals of Public International Law. Quezon


City, Philippines: C&E Publishing.
32 Cruz, Isagani A. (2003). International Law. Quezon City, Philippines: Central
Lawbook Publishing Co., Inc.

Other states have the following rights in the exclusive economic zone: (a) freedom of navigation
and overflight; (b) freedom to lay submarine cables and pipelines; (c) freedom to engage in other
internationally lawful uses of the sea realted to said functions.33

RIGHTS OF LAND-LOCKED STATES


Land-locked states have the right to participate, on an equitable basis, in the exploitation of an
appropriate part of the surplus of the living resources of the exclusive economic zone of the
coastal states of the same sub-region or region34

CONTINENTAL SHELF
The Continental (Archipelagic) Shelf refers to the seabed and subsoil of the submarine areas
adjacent to the coastal state but outside the territorial sea, to a depth of 200 meters or, beyond
that limit, to where the depth allows exploitation and the seabed and subsoil of areas adjacent to
islands.35

RIGHTS OF THE COASTAL STATE


Coastal states have the sovereign rights for the purpose of exploring and exploiting its natural
resources. These rights are exclusive, hence, if the State does not explore or exploit the
continental shelf, no one may do so without its express consent. 36

33 Bernas, Joaquin G. (2009). Introduction to Public International Law. Manila,


Philippines: Rex Book Store
34 Bernas, Joaquin G. (2009). Introduction to Public International Law. Manila,
Philippines: Rex Book Store
35 Cruz, Isagani A. (2003). International Law. Quezon City, Philippines: Central
Lawbook Publishing Co., Inc.
36 Ibid.

SEABED
The deep seabed are areas of the seabed and ocean floor, and their subsoil, which lie beyond any
national jurisdiction. These are considered common heritage of mankind and may not be
appropriated by any state or person.37

ISLANDS
Islands are naturally formed areas of land, surrounded by water, which is above water at high
tide. They can have their own territorial sea, exclusive economic zone and continental shelf.
Rocks which cannot sustain human habitation or economic life shall have no exclusive economic
zone or continental shelf, but can have a territorial sea. Artificial islands or installations are,
however, not islands.38

HIGH SEAS
The high seas comprises all that parts of the sea that are not included in the territorial sea or in
the internal waters of a state. The flag state has exclusive jurisdiction over its ships on the high
seas to the extent not limited by agreement.39
The flag state means a ship that has the nationality of the flag state it flies. In flag state, there
must be a genuine link between the state and the ship. It is different from a flag of convenience
which refers to a state which a vessel is registered for various reasons such as low or nonexistent taxation or low operating costs although the ship has no genuine link with that state. 40

Flag State: Law of the Flag


Lauritzen v. Larsen
345 U.S. 571 (1953)

37 Ibid.
38 Ibid.
39 Ibid.
40 Magallona, Merlin M. (2005). Fundamentals of Public International Law. Quezon
City, Philippines: C&E Publishing.

FACTS:
Larsen, a Danish seaman, brought suit under Jones Act to recover for injuries on the Danish Ship,
Randa, while docked in Cuba. Larsen joined the crew of the ship of Danish flag and registry and a
member of the Danish Seamens Union.
Lauritzen contends that Danish law was applicable and that under it, Larsen had received all the
compensation to which he is entitled. Larsen based his assertions of federal jurisdiction on board
reading of Jones Act, that encompassed all sailors and on Lauritzen Companys significant New
York business contracts.
ISSUE:
Whether the Danish law or the US law shall apply.
HELD:
The Danish Law shall apply. Under the law of the flag, each state under international law may
determine for itself the conditions on which it will grant its nationality to a merchant ship, thereby
accepting responsibility for it and acquiring authority over it.
Nationality is evidenced to the world by the ships paper and its flag. The law of the flag
supersedes the territorial principle, even for criminal jurisdiction of personnel of a merchant ship,
because it is deemed to be part of the territory of that sovereignty whose flag it flies. It does not
lose that character when in navigable waters within the territorial limits of another sovereignty.
All matters of discipline and all things done on board which affected only the vessel or those
belonging to it, and do not involve the peace or dignity of the country or the ports tranquility,
should be left by the local government to be dealt with the authorities of the nation to which the
vessel belongs as the laws of that nation or the interests of its commerce requires.

The Lotus Case


(France v Turkey), PCIJ, 07 September 1927
FACTS:
Shortly before midnight, a collision occurred between the French mail steamer Lotus and the
Turkish collier Boz-Kourt on the 2nd of August 1926. The French mail steamer was captained by a
French citizen, Demons, while the Turkish collier Boz-Kourt was captained by Hassan Bey. The
Turks lost eight men after their ship was cut into two and sank as a result of the collision.
Although the Lotus did all it could within its power to extend help to those people of the Turkish
collier Boz-Kourt, it continued on its course to Constantinople. On the 5 th of August, Lieutenant
Demons was asked by the Turkish authority to go ashore and give evidence. After Demons was
examined, he was placed under arrest without informing the French Consul-General and Hassan
Bey. Demons was convicted by the Turkish courts for negligence conduct in allowing the accident
to occur.
Demons contended that the court lacked jurisdiction over him.

ISSUE:
Whether or not the exercise of Turkish criminal jurisdiction over Demons for an incident that
occurred on the high seas contravened international law.
HELD:
No. A rule of international law, which prohibits a state from exercising criminal jurisdiction over
a foreign international who commits acts outside of the states national jurisdiction, does not exist.
Failing the existence of a permissive rule to the contrary is the first and foremost restriction
imposed by international law on a state and it may not exercise its power in any form in the
territory of another state.
This does not imply that international law prohibits a state from exercising jurisdiction in its own
territory, in respect of any case that relates to acts that have taken place abroad which it cannot
rely on some permissive rule of international law. In this situation, it is impossible to hold that
there is a rule on international rule on international law that prohibits Turkey from prosecuting
Demons because he was aboard a French ship. This stems from the fact that the effects of the
alleged offense occurred on a Turkish vessel. Hence, both States, whether it be turkey or France,
may exercise concurrent jurisdiction over this matter because there is no rule of international law
in regards to collusion cases to the effect that criminal proceedings are exclusively within the
jurisdiction of the state whose flag is flown.

SIX FREEDOMS OVER HIGH SEAS


Since the high seas belongs to everyone and no one being both res commones and res
nullius, everyone may enjoy the rights which the high seas are subjected to. There are six (6)
freedoms, to wit: (1) Navigation; (2) Overflight; (3) Fishing; (4) Laying of submarine cables and
pipelines; (5) Construction of artificial islands and structures; and (6) Scientific research. 41

HOT PURSUIT
Article 111 of the United Nations Convention on the Law of the Sea allows hot pursuit of a
foreign vessel where there is good reason to believe that the ship has violated laws or regulations
of a coastal state. This must commence when the foreign vessel is within the internal waters,
archipelagic waters, territorial waters, exclusive economic zone, continental shelf or the
contiguous zone of the pursuing state. Hot pursuit must stop as soon as the ship pursued enters
the territorial waters of its own state or of a third state. Hot pursuit may be carried out only by
warships or military aircraft, or any other ships or aircraft properly marked for that purpose.42
SS. Im Alone

41 Bernas, Joaquin G. (2009). Introduction to Public International Law. Manila,


Philippines: Rex Book Store

29 AJIL 326
FACTS:
The Im Alone, a British ship of Canadian registry, but de facto owned, controlled and managed
by a group of American citizens engaged in smuggling liquor into the United States, was sunk on
the high seas in the Gulf of Mexico by a United States coast guard patrol boat, with the loss of one
member of the Im Alones crew, on March 22, 1929, after hot pursuit which bean on March 20
within twelve miles of the United States coast.
ISSUE:
Whether or not United States has the right of hot pursuit in this case.
HELD:
Yes. Under the Convention of January 23, 1924, between the United States and Great Britain to
prevent the smuggling of intoxicating liquors into the United States, the Commissioners could
inquire into the beneficial ownership of the Im Alone, and that the United States might use
necessary and reasonable force to board, search, seize and bring the suspected vessel into port;
but the admittedly intentional sinking of the vessel was not justified by anything in the convention
or by any principle of international law.
Further, no compensation ought to be paid in respect of the loss of the ship or cargo, but that the
United States ought to apologize to Canada and pay that Government the sum of $25,000 as a
material amend, and also to pay the additional sum of $26,666.50 for the benefit of the captain
and the crew of the Im Alone, none of whom was a party to the illegal conspiracy to smuggle
liquor into the United States and sell the same there.

MOST FAVORED NATION (Martinez)


"Most favoured nation" (MFN) is a status or level of treatment accorded by one state to another
in international trade. The term means the country which is the recipient of this treatment must,
nominally, receive equal trade advantages as the "most favoured nation" by the country granting
such treatment. (Trade advantages include low tariffs or high import quotas.) In effect, a country
that has been accorded MFN status may not be treated less advantageously than any other
country with MFN status by the promising country43
The earliest form of the most favoured nation status can be found as early as in the 11th century.
Today's concept of the most favoured nation status starts to appear in the 18th century, which is
42 Cruz, Isagani A. (2003). International Law. Quezon City, Philippines: Central
Lawbook Publishing Co., Inc.
43 https://en.wikipedia.org/wiki/Most_favoured_nation

when the division of conditional and unconditional most favoured nation status also began.[3] In
the early days of international trade, "most favoured nation" status was usually used on a dualparty, state-to-state basis. A nation could enter into a "most favoured nation" treaty with another
nation. With the Jay Treaty in 1794, the US granted "most favoured nation" trading status to
Britain.44
After World War II, tariff and trade agreements were negotiated simultaneously by all interested
parties through the General Agreement on Tariffs and Trade (GATT), which ultimately resulted
in the World Trade Organization in 1994. The World Trade Organization requires members to
grant one another "most favoured nation" status. A "most favoured nation" clause is also included
in the majority of the numerous bilateral investment treaties concluded between capital exporting
and capital importing countries after the Second World War.
EXCLUSION
The provisions of the UNCLOS, as well as special agreements relating to the exercise of
the right of access to and from the sea, establishing rights and facilities on account of the special
geographical position of land-locked States, are excluded from the application of the mostfavoured-nation clause. 45

LAND-LOCKED STATES vs ARCHIPELAGIC STATES


Right of access to and from the sea and freedom of transit: 46
1. Land-locked States shall have the right of access to and from the sea for the purpose of
exercising the rights provided for in this Convention including those relating to the
freedom of the high seas and the common heritage of mankind. To this end, land-locked

44 Ibid.
45 Article 124, UNCLOS
46 Article 125, UNCLOS

States shall enjoy freedom of transit through the territory of transit States by all means of
transport.
2. The terms and modalities for exercising freedom of transit shall be agreed between the
land-locked States and transit States concerned through bilateral, subregional or regional
agreements.
3. Transit States, in the exercise of their full sovereignty over their territory, shall have the
right to take all measures necessary to ensure that the rights and facilities provided for in
this Part for land-locked States shall in no way infringe their legitimate interests.
It is of general accord that for economic necessity and socialization or participation in the
mundane customs of human beings, that a right of access to the sea be given to land locked
states. Further, such right must be equally binding among all states through a meaningful
recognition of an internationally binding legal instrument. The United Nations Convention on the
Law of the Seas paved the way for these rights to be recognized and realized. It is widely
believed that for the Convention to reach its full efficiency, the state signatories must adopt the
entirety of its provisions, hence, it must be adopted as a package deal, and critical that States be
limited, if not prohibited, from making reservations to its central provisions. To ratifying transit
States would be bound to recognize and respect the rights of access and freedom of transit
guaranteed land-locked States.47

PROTECTION AND PRESERVATION OF MARINE LIFE (Baruiz)


Marine scientific research is to be conducted in compliance with all relevant regulations adopted
in conformity with the Convention, including those for the protection and preservation of the
marine environment48. As a result, the provisions of Part XII of the Convention, which address
the protection and preservation of the marine environment, apply to the conduct of marine
scientific research.

47 digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1904&context=gjicl
48 Article 240, UNCLOS

Article 194 sets out the measures to be taken to prevent, reduce and control pollution from any
source, including installations and devices operating in the marine environment. States are also
required to take all measures necessary to prevent, reduce and control pollution resulting from
the use of technologies under their jurisdiction or control 49. Articles 204 to 206 require States,
when they 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, to assess the potential effects of such activities on the marine environment and
communicate reports of the results of such assessments.
Article 200 requires cooperation among States, directly or through competent international
organizations, for the purpose of promoting studies, undertaking scientific research programmes,
and encouraging the exchange of information and data about pollution of the marine
environment. That article also requires States to participate actively in regional and global
programmes to acquire knowledge for the assessment of the nature and extent of pollution,
exposure to it, and its pathways, risks and remedies. Article 201 requires States to cooperate in
establishing appropriate scientific criteria for the development of rules, standards and
recommended practices and procedures for the prevention, reduction and control of pollution of
the marine environment. In the context of international cooperation in marine scientific research,
States are also required to provide other States with a reasonable opportunity to obtain from
them, or with their cooperation, information necessary to prevent and control damage to the
marine environment, among others50.
Article 236 excludes from the application of the provisions of the Convention regarding the
protection and preservation of the marine environment, inter alia, vessels or aircraft owned or
operated by a State and used only on government non-commercial service. However, this article
requires the flag State to ensure, by the adoption of appropriate measures not impairing
operations or operational capabilities of such vessels or aircraft owned or operated by it, that
such vessels or aircraft act in a manner consistent, so far as is reasonable and practical, with the
Convention.
49 Article 196, UNCLOS
50 Article 242, UNCLOS

Article 237 of the Convention addresses the relationship between the Convention and
other conventions and agreements relating to the protection and preservation of the marine
environment. It provides that specific obligations assumed by States under special conventions
with respect to the protection and preservation of the marine environment should be carried out
in a manner consistent with the general principles and objectives of the Convention. In that
regard, marine scientific research should be undertaken consistent with the measures and
regulations adopted pursuant to those instruments provided that those are consistent with the
general principles and objectives of the Convention.

RESPONSIBILITY AND LIABILITY


The Convention requires States parties to fulfill in good faith the obligations they assume
under it and to exercise the rights, jurisdiction and freedoms recognized in the Convention in a
manner which would not constitute an abuse of right51.
According to Article 263, States and competent international organizations involved in marine
scientific research, whether undertaken by them or on their behalf, are:
a) Responsible for ensuring that it is conducted in accordance with the Convention;
b) Responsible and liable for the measures they take in contravention of the Convention in
respect of marine scientific research by other States, their natural or juridical persons or
by competent international organizations, and shall provide compensation for damage
resulting from such measures; and
c) Responsible and liable pursuant to Article 235 for damage caused by pollution of the
marine environment arising out of marine scientific research undertaken by them or on
their behalf.
Article 235, Paragraph 2, in Part XII requires States to ensure that recourse is available in
accordance with their legal systems for prompt and adequate compensation or other relief in
respect of damage caused by pollution of the marine environment by natural or juridical persons
under their jurisdiction. 52
51 Article 300, UNCLOS

Article 235, Paragraph 3, further requires States to cooperate in the implementation of existing
international law and the further development of international law relating to responsibility and
liability for the assessment of and compensation for damage caused by pollution of the marine
environment and the settlement of related disputes, as well as, where appropriate, development
of criteria and procedures for payment of adequate compensation, such as compulsory insurance
or compensation funds. 53
Article 304 provides that the provisions of the Convention with regard to responsibility and
liability are without prejudice to the application of existing rules and the development of further
rules regarding responsibility and liability under international law.54

SETTLEMENT OF DISPUTES
Due to the fact that marine scientific research can be conducted in areas within national
jurisdiction, there is potential for a dispute between the rights and duties of the coastal State and
those of the researching State, with regard to, for example, issues of consent (express or implied)
and the conduct of the researching State during and after the research. Likewise, disputes could
also possibly arise with respect to the conduct of marine scientific research in the high seas and
the Area and other activities occurring in those areas.55
The dispute settlement procedures with regard to marine scientific research are set out in Part
XIII, Section 6, and Part XV of the Convention. Article 264 in Part XIII provides that all disputes
concerning the interpretation or application of the provisions of the Convention with regard to
marine scientific research shall be settled in accordance with Part XV, sects. 2 and 3. Section 2 of
Part XV provides for compulsory procedures entailing binding decisions,36 while Section 3
52 United Nations Convention on the Law of the Seas
53 Ibid.
54 Ibid.
55 United Nations Convention on the Law of the Seas

outlines various limitations and exceptions to the applicability of Section 2. The procedures
outlined in Part XV are open to States parties to the Convention and to other entities only as
specifically provided for in the Convention.56
Article 264 is complemented by Article 265, which provides for interim measures pending the
settlement of a dispute. In this case the State or competent international organization authorized
to conduct a research project, shall not allow research activities to commence or continue,
without the express consent of the coastal State concerned. 57
In any dispute concerning the interpretation or application of the Convention, States are required
to settle their disputes by peaceful means (arts. 279 and 280 (Part XV, Section 1) and Article 286
(Part XV, Section 2)). To this end, States must seek a solution by the means provided for in
Article 33, Paragraph 1, of the Charter of the United Nations, that is, negotiation, enquiry,
mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or
arrangements, or other peaceful means of their own choice.58
Article 297, Paragraph 2(a), provides that coastal States shall not be obliged to accept the
compulsory procedures regime described in Section 2 of Part XV for any dispute arising out of:
59

a) The exercise by the coastal State of a right or discretion in accordance with Article 246;
or
b) A coastal States decision to order suspension or cessation of a research project in
accordance with Article 253.
Thus disputes concerning allegations by the researching State that, with respect to a specific
project, the coastal State is not exercising its rights under arts. 246 and 253 in a manner
compatible with the provisions of the Convention can be submitted at the request of either party,
56 Ibid.
57 Ibid.
58 Ibid
59 Ibid.

to conciliation under Annex V, Section 2. The conciliation commission, however, is not


empowered to question the coastal States exercise of its discretionary power to designate
specific areas referred to in Article 246, Paragraph 6, or to withhold consent in accordance with
Article 246, Paragraph 5. 60
Article 286 (Part XV, Section 2), provides that where the parties to a dispute have been unable to
reach a settlement by recourse to Section 1, then the dispute may be submitted at the request of
any party to the dispute to the court or tribunal having jurisdiction under Section 2. The courts
and tribunals referred to here, as provided in Article 287, include the International Court of
Justice; the International Tribunal for the Law of the Sea; an arbitral tribunal constituted in
accordance with Annex VII to the Convention; and a special arbitral tribunal constituted in
accordance with Annex VIII for one or more of the categories of disputes specified therein.61

THE AREA (Caaveral)


The "Area" is the seabed and ocean floor that is beyond the limits of national jurisdiction. This is
the portion of the seabed that is beyond the EEZ or the recognized continental shelf of a country.
It would be inaccurate to say that the Area is the seabed underneath the high seas, since the high
seas can overlap portions of continental shelf that are subject to national sovereignty. The Area is
particularly unique in that UNCLOS designates it and the resources it contains as "the common
heritage of mankind." No nation is allowed to lay claim to any part of the Area or its resources.
Regarding the resources, "[a]ll rights in the resources of the Area are vested in mankind as a
whole.... As a result, companies that wish to exploit the mineral resources of the Area will have
to enter into a profit sharing agreement in which the profits derived from mineral resources
captured in the Area will be shared with developing nations. 62

60 United Nations Convention on the Law of the Seas


61 Ibid.
62 (Hollis, United Nations Convention on Law of the Seas, 1982, Hollis, 2010,
retrieved from: http://www.eoearth.org/view/article/156775/)

PRINCIPLES GOVERNING THE AREA


The Area and all its resources found within is the common heritage of mankind. It is a property
of no one. 63
No State can claim or exercise sovereignty or sovereign rights over the Area or its resources. No
State or natural or juridical person is allowed to appropriate any part thereof including minerals
that are recovered from the Area, thus, in such, it is will not be recognized. All rights in the
resources found belongs to the mankind as a whole, they are not subject to alienation. However,
they may be alienated only in accordance with this Part and the rules, regulations and procedures
of the Authority.64

General conduct of States in relation to the Area is in accordance with the provisions of this Part,
principles in the United Nations Charter and other international laws that aims peace
maintenance and security and promoting international co-operation and mutual understanding.65

State members as well as international organizations are expected to take responsibility to ensure
that activities in the Area are in accordance with this Part. Any damage caused by failure to
comply shall be subject to liability, however, State Parties will not be held liable for a damage
caused by an individual if it is shown that the State has taken all appropriate measures to prevent
such.66

63 Ibid.
64 Ibid.
65 Ibid.
66 Ibid.

UNCLOS DISPUTE SETTLEMENT REGIME: GENERAL PRINCIPLES (Besa)


THE PACKAGE DEAL
The dispute settlement regime in UNCLOS is the most complex system ever included in any
global convention. It was part of the package deal agreed to at the start of the nine year
negotiations leading to the adoption of UNCLOS in 1982. Under the package deal, States agreed
to accept the convention in its entirety, with no right to make reservations, and that as a general
principle, all disputes concerning the interpretation or application of any provision in the
convention would be subject to compulsory binding dispute settlement. In other words, when
States become parties to UNCLOS, they consent in advance to the system of compulsory binding
dispute settlement in the Convention.67

THE CHOICES FOR ARBITRATION OR ADJUDICATION


The default rule in UNCLOS is that if there is a dispute between two States concerning the
interpretation or application of any provision in the Convention, it is subject to the system of
compulsory binding dispute settlement in section 2 of Part XV. States are obligated to first
exchange views to try to resolve the dispute by following the procedures set out in section 1 of
Part XV. However, where no settlement has been reached by recourse to section 1, the dispute
may be unilaterally submitted at the request of any party to the dispute to the court or tribunal
having jurisdiction under this section.68
The court or tribunal which has jurisdiction to hear a dispute depends in part on whether the
parties to the dispute have exercised their right to select a procedure for resolving disputes to
which they are parties. Under article 287, a State is free to choose, by means of a written
declaration, one or more of four procedures for the settlement of disputes concerning the
interpretation or application of the Convention. States have a choice between two methods of
adjudication and two methods of arbitration. The choices are: adjudication before the ICJ;
67 Beckman_MIMA_SCS_Conference_12-13_Dec_2011_draft_10_Dec1
68 Ibid.

adjudication before the International Tribunal for the Law of the Sea (ITLOS); arbitration under
Annex VII of UNCLOS; or special arbitration under Annex VIII of UNCLOS. The choice of
procedure may be made when signing, ratifying or acceding to UNCLOS, or at any time
thereafter.69
If two States Parties to a dispute have elected the same procedure, the dispute will be referred to
that procedure. If the States Parties to the dispute have not elected the same procedure, or if one
of them has not made a choice of procedure, the dispute will go to arbitration under Annex VII,
unless the parties otherwise agree. For example, in 2010, Bangladesh invoked the dispute
settlement system in UNCLOS against both India and Myanmar concerning the UNCLOS
provisions on maritime boundary delimitation. None of the three States concerned had made a
choice of procedure under Article 287. Therefore, the dispute between Bangladesh and India as
well as the dispute between Bangladesh and Myanmar would go to arbitration under Annex VII.
However, Bangladesh and Myanmar subsequently agreed to take their dispute to ITLOS rather
than to arbitration. Consequently, Bangladesh will be going to arbitration in its dispute with India
and to ITLOS in its dispute with Myanmar.70
None of the States which claim sovereignty over features in the South China Sea have made an
election under article 287. Therefore, if the compulsory binding dispute settlement system in
section 2 of Part XV were invoked in a dispute between two claimant States relating to the South
China Sea, the dispute in question would go to arbitration under Annex VII of UNCLOS12.71

APPLICABLE LAW AND FINALITY OF DECISIONS


The court or tribunal has jurisdiction because the dispute concerns the interpretation or
application of a provision in UNCLOS. However, in resolving the dispute, the court or tribunal is
not restricted to applying the provisions of UNCLOS. Article 293 of UNCLOS provides that a
69 Beckman_MIMA_SCS_Conference_12-13_Dec_2011_draft_10_Dec1
70 Ibid.
71 Ibid.

court or tribunal having jurisdiction shall apply the Convention as well as other rules of
international law not incompatible with the Convention.72
Whether the dispute goes to one of the two methods of adjudication or to one of the two methods
of arbitration, the decision rendered by a court or tribunal having jurisdiction is final, and must
be complied with by all the parties to the dispute.73

REQUEST FOR PROVISIONAL MEASURES


A State party to a dispute which is referred to dispute settlement under section 2 may also request
provisions measures to either (1) preserve the respective rights of the parties; or (2) prevent
serious harm to the marine environment. The only prerequisite is that ITLOS must first
determine that prima facie the arbitral tribunal to be constituted would have jurisdiction to hear
the case.74
Such provisional measures are legally binding. Even if a dispute is being referred to an m
arbitration tribunal, a State party may request provisional establishment of the arbitral tribunal.75

OPTIONAL EXCEPTIONS UNDER ARTICLE 298


Section 3 of Part XV also gives States the right to opt out of the compulsory binding dispute
settlement system in section 2 for certain categories of disputes. Article 298 provides that States
parties have the option to formally declare to the UN Secretary-General that they do not accept
Section 2 for certain categories of disputes, including the following:76

72 Beckman_MIMA_SCS_Conference_12-13_Dec_2011_draft_10_Dec1
73 Ibid.
74 Ibid.
75 Ibid.

the interpretation or application of articles 15, 74 and 83 relating to sea boundary

delimitations, or those involving historic bays or titles;


disputes concerning military activities and disputes concerning law enforcement activities
relating to enforcement of rights and jurisdiction of coastal States over resources in the

EEZ;
disputes in respect of which the Security Council of the United Nations is exercising the
functions assigned to it by the Charter of the United Nations.

Several States in Asia, including Australia, China and Korea, have exercised their right to
exclude these categories of disputes from the system of compulsory binding dispute settlement in
section 2 of Part XV. Significantly, on 25 August 2006, China submitted a declaration under
article 298 providing that:77
The Government of the People's Republic of China does not accept any of the procedures
provided for in Section 2 of Part XV of the Convention with respect to all the categories of
disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention.

It should be noted that the exclusion of certain categories of disputes from the jurisdiction of
court or tribunal under article 298 declarations are not self-judging. A party to a dispute cannot
determine whether the exclusions do or do not apply in a given case. Article 288(4) makes it
clear that in the event of dispute on whether a court or tribunal has jurisdiction, the matter shall
be settled by a decision of that court or tribunal.78
The following sections will examine the nature of the disputes excluded under Article 298
Declarations.79

76 Ibid.
77 Beckman_MIMA_SCS_Conference_12-13_Dec_2011_draft_10_Dec1
78 Ibid.
79 Ibid.

DISPUTES

RELATED

TO

MILITARY

ACTIVITIES

AND

CERTAIN

LAW

ENFORCEMENT ACTIVITIES
Chinas declaration under article 298 excludes disputes relating to military activities. Therefore,
any dispute on whether a State has a right under Article 58 of UNCLOS to conduct military
activities such as military surveys or military exercises in the EEZ of China would be excluded
from the compulsory binding dispute settlement system in UNCLOS. Any dispute concerning
military activities by China in the maritime zones of another State would also be excluded.80
Chinas declaration also excludes disputes relating to law enforcement activities in relation to the
exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal
under Article 297(2) or (3). This in effect excludes only a narrow category of law enforcement
activities, that is, those relating to the enforcement of fisheries activities and marine scientific
research activities, which activities are already excluded from the compulsory binding dispute
settlement system under Articles 297(2) and (3). Disputes relating to other types of law
enforcement activities, such as disputes concerning interference with seismic surveys or disputes
concerning the arrest of foreign fishing vessels in areas of overlapping claims would not be
excluded by the declaration.81

DISPUTES RELATED TO MATTERS COVERED BY THE SECURITY COUNCIL


Chinas declaration also excludes disputes in respect of which the Security Council of the United
Nations is exercising the functions assigned to it by the Charter of the United Nations, unless the
Security Council decides to remove the matter from its agenda or calls upon the parties to settle
it by the means provided for in this UNCLOS. The purpose of this exception is to avoid a
conflict between a dispute settlement procedure initiated under Part XV of UNCLOS and action
that the United Nations Security Council might be taking in the exercise of its responsibility to
maintain international peace and security under Chapter VII of the United Nations Charter. For
example, if armed conflict were to break out between claimant States over the disputed islands in
80 Beckman_MIMA_SCS_Conference_12-13_Dec_2011_draft_10_Dec1.
81 Ibid.

the South China Sea, the matter may be referred to the Security Council. In such a case, one of
the parties to the dispute may not be able to invoke the dispute settlement procedures in
UNCLOS on the issue of whether the use of military force by a claimant State was a violation of
UNCLOS.82

DISPUTES ON MARITIME BOUNDARY DELIMITATIONS


An article 298 declaration also excludes disputes concerning the interpretation or application of
articles 15, 74 and 83 relating to sea boundary delimitations. Therefore, another claimant such
as Vietnam could not invoke the CBDS system against China with regard to the delimitation of
the EEZ or continental shelf boundary.83
However, although disputes on the interpretation or application of articles 74 and 83 relating to
sea boundary delimitations can be excluded under the article 298 declaration, there may
nevertheless be issues with respect to the interpretation or application of articles 74 and 83 which
are not covered by the exclusion. Not all the paragraphs in articles 74 and 83 deal with sea
boundary delimitations. For example, under paragraph 3 of Articles 74 and 83 of UNCLOS,
State Parties have an obligation to make every effort to enter into provisional arrangements of a
practical nature and not to engage in activities which would jeopardize or hamper the reaching
of the final agreement on the maritime boundaries. If a State refuses to enter into discussions
regarding provisional arrangements of a practical nature, there would be a dispute on whether it
has breached its obligation under articles 74 and 83 to make every effort to enter into provisional
arrangements of a practical nature. Also, if a claimant State authorized drilling in an area in
dispute, an issue would arise as to whether it has breached its obligation not to engage in
activities which would jeopardize or hamper the reaching of the final agreement on the maritime
boundaries. Therefore, a court or arbitral tribunal could interpret article 298 strictly and rule that

82 Ibid.
83 Beckman_MIMA_SCS_Conference_12-13_Dec_2011_draft_10_Dec1

it only excludes disputes relating to the boundary delimitations, not disputes on the obligations of
states pending agreement on the delimitation of boundaries.84

DISPUTES ON HISTORIC BAYS AND TITLES, HISTORIC WATERS AND HISTORIC


RIGHTS
Article 298 provides that disputes on historic bays and titles may be excluded. Part II of
UNCLOS on the territorial sea contains one provision referring to historic bays and one
provision referring to historic title. Article 10 sets out rules for enclosing bays with straight
baselines, but provides in paragraph 6 that its provisions do not apply to so-called historic
bays. Article 15 on the delimitation of territorial sea provides that the normal rule for delimiting
territorial sea boundaries does not apply where it is necessary by reason of historic title or
other special circumstances to delimit the territorial seas of the two States in a way which is at
variance with the normal rule. The fact that the terms historic bays and titles appear in Part II
of UNCLOS on territorial seas suggest that the terms are used to refer to maritime space that is
similar to internal waters or territorial sea.85
Another issue is whether disputes relating to historic waters would fall within the exclusion in
article 298 of disputes relating to historic bays or titles. With the exception of the provision in
article 15, the law on historic waters is governed by the principles and rules of general
international law. As indicated in the preamble to UNCLOS, matters not regulated by UNCLOS
continue to be governed by the rules and principles of general international law. It is not clear
whether the exclusion in article 298 of disputes relating to historic bays or titles would also
include disputes on claims to historic waters but it is reasonable to conclude that it would.86

84 Ibid.
85 Beckman_MIMA_SCS_Conference_12-13_Dec_2011_draft_10_Dec1
86 Ibid.

There is no generally agreed definition of historic waters, but it is generally agreed that it is
wider in scope that historic bays. A working definition of historic waters that has been
proposed by a Professor Clive Symmons is as follows:87
Waters over which the coastal State, contrary to the generally applicable rules of
international law, clearly, effectively, continuously, over a substantial period of time, exercises
sovereign rights with the acquiescence of the community of States.

The International Court of Justice has stated that the term historic waters was generally
understood to mean waters which are treated as internal waters but which would not have that
character were it not for the existence of an historic title.88
In his recent review of the subject, Professor Symmons has stated that certain requirements are
necessary to support claims to historic title to historic waters. First, with respect to the exercise
of authority, there must be a formal, clear and consistent claim to sovereignty over the waters.
Second, the claim must have been adequately publicized with clear notification of the claim to
other States, such as by a formal declaration. Third, there must have been continuity of the claim
over time and the effective exercise of jurisdiction by the claiming State. Finally, there must have
been knowledge of, and acquiescence to the claim by other States. 89
Although some scholars from Taiwan and China have claimed that China that the waters inside
Chinas nine-dashed lines on its 1947 map are Chinas historic waters, this argument is not
convincing.90
Simply stated, it is not possible to argue that the requirements set out by Prof Symmons have
been met. The publication of a map is not clear notification of a claim to historic waters without
a formal declaration. Also, given that the meaning of the nine-dashed line map is still being
87 Ibid.
88 Ibid.
89 Beckman_MIMA_SCS_Conference_12-13_Dec_2011_draft_10_Dec1
90 Ibid.

debated in 2011 inside and outside China, it would be extremely difficult for China to maintain
that there has been clear notification of the claim to other States.91
The term historic rights is also found in the literature and in international cases. Symmons
argues that the term historic rights is broader than that of historic waters. He states that the
term historic rights implies, in its widest sense, a State claiming to exercise certain
jurisdictional rights, most particularly fishing rights, in what usually are high seas. He states that
historic rights must satisfy the same, or at least similar requirements as historic waters, such as
continuous and long usage with the acquiescence of relevant other States. However, he argues
that historic rights are different from historic waters in several important ways. The most
important difference he gives is that historic rights do not amount to claims of sovereignty or
jurisdiction over a certain maritime space, but only a claim to exercise rights and jurisdiction
over fisheries in areas of the high seas or areas within the EEZ of other States. 92
Claims to historic fishing rights have been considered in several modern international cases,
including the 1982 Tunisia/Libya Continental Shelf Case, the 2001 Qatar/Bahrain Case and the
1999 Eritrea/Yemen Arbitration. The issue which arose in these cases was whether the claim to
historic rights to fisheries resources should have an influence on maritime boundary delimitation
between the two States. Symmons concludes after examining these cases that the relevance of
claimed historic rights to maritime delimitation of the EEZ and continental shelf remains unclear.
However, he also states that coastal States sometimes agree to give access to fisheries in their
EEZ to fishermen who have historically fished in waters that are now its EEZ.93
The doctrine of historic rights to fishing resources developed when the waters beyond the limits
of a 3 nautical mile territorial sea were subject to the principle of freedom of fishing. In the 1974
Fisheries Jurisdiction case the ICJ ruled that Iceland, a coastal State with a special dependence
on fishing, had preferential rights to the fisheries resources outside its territorial sea, but that
the United Kingdom had established rights because its fishermen had historically fished in the
91 Ibid.
92 Ibid.
93 Beckman_MIMA_SCS_Conference_12-13_Dec_2011_draft_10_Dec1

same area. However, these principles were rejected in the negotiations leading to UNCLOS in
favour of a 200 nautical mile EEZ regime in which coastal States have the sovereign right to
explore and exploit the living resources. The EEZ regime in UNCLOS does not recognize
historic fishing rights or established fishing rights of other States in the EEZ. Rather, it provides
that in giving access to other States in its EEZ to any surplus of its allowable catch, the coastal
State shall take into account all relevant factors, including the need to minimize economic
dislocation in States whose nationals have habitually fished in the Zone or who have made
substantial efforts in research and identification of stocks. Coastal States have wide discretion in
granting access to any surplus of living resources in their EEZ, and their discretionary decisions
are generally not subject to the CBDS system in Part XV of UNCLOS.29 Therefore, it can be
argued that when States become Parties to UNCLOS, they have in effect abandoned any historic
rights to fish in the EEZ of other States.94
Officials and scholars from China have often referred to historic rights of China inside the
nine-dashed line. If a dispute arises with respect to Chinas historic rights in waters that are now
the EEZ of other States, such a dispute would be subject to the CBDS system in section 2 of Part
XV. It would not be excluded by Chinas declaration under article 298, as claims to historic
rights are very different than claims to historic bays or titles or claims to historic waters.95

COMPULSORY CONCILIATION UNDER ANNEX 5


Even if a State makes a declaration under article 298 to exclude disputes relating to maritime
boundary delimitation and historic bays and titles from the CBDS in section 2 of Part XV, such
disputes may nevertheless be subject to the compulsory conciliation procedures in Annex 5 of
UNCLOS. Article 298 provides that:96

94 Ibid.
95 Beckman_MIMA_SCS_Conference_12-13_Dec_2011_draft_10_Dec1
96 Ibid.

a. disputes concerning the interpretation or application of articles 15, 74 and 83 relating


to sea boundary delimitations, or those involving historic bays or titles, provided that
a State having made such a declaration shall, when such a dispute arises subsequent
to the entry into force of this Convention and where no agreement within a reasonable
period of time is reached in negotiations between the parties, at the request of any
party to the dispute, accept submission of the matter to conciliation under Annex V,
section 2; and provided further that any dispute that necessarily involves the
concurrent consideration of any unsettled dispute concerning sovereignty or other
rights over continental or insular land territory shall be excluded from such
submission;
b.

after the conciliation commission has presented its report, which shall state the
reasons on which it is based, the parties shall negotiate an agreement on the basis of
that report; if these negotiations do not result in an agreement, the parties shall, by
mutual consent, submit the question to one of the procedures provided for in section
2, unless the parties otherwise agree;

c.

this subparagraph does not apply to any sea boundary dispute finally settled by an
arrangement between the parties, or to any such dispute which is to be settled in
accordance with a bilateral or multilateral agreement binding upon those parties;

Therefore, if a dispute arises after 16 November 1994 (the date of entry into force of UNCLOS)
on the delimitation of the maritime boundary between China and another State Party to
UNCLOS, and it does not concern the concurrent consideration of any unsettled dispute
concerning sovereignty or other rights over continental or insular land territory, it could be
referred to compulsory conciliation under Annex V.97
However, if the delimitation of the maritime boundaries is in an area which would also require
the concurrent consideration of an unsettled dispute concerning sovereignty over off-shore
islands, the dispute would not be subject to the compulsory conciliation. The only recourse

97 Beckman_MIMA_SCS_Conference_12-13_Dec_2011_draft_10_Dec1

would be to resolve the issues by bilateral negotiations or by other procedures agreed to by the
parties.98
The procedures for compulsory conciliation are set out in Annex 5 of UNCLOS. A conciliation
commission would be established, and it would study the problem and issue a report. The report
is not legally binding on the parties, but the parties would be under a legal obligation to negotiate
in good faith on the basis of the conciliation report. This requirement forces parties to abandon
their traditional position and negotiate in good faith to try to reach an agreement on the basis of
the conciliation report. Although the parties are not required to reach an agreement, they are
legally obligated to negotiate in good faith to try to reach agreement.99
If they are unable to reach agreement after negotiations on the basis of the report, it is not
entirely clear what happens. Article 298 provides that:100
if these negotiations do not result in an agreement, the parties shall, by mutual consent, submit the question
to one of the procedures provided for in section 2, unless the parties otherwise agree.

Opinions differ on what the meaning of the phrase shall, by mutual consent, submit the case to
either arbitration or adjudication as provided in section 2. The language appears to be
intentionally vague. It could be argued that if the parties cannot reach agreement based on the
non-binding conciliation report, they must then agree to refer the dispute to one of the four
methods of CBDS in section 2 adjudication before the ICJ, adjudication before ITLOS,
arbitration under Annex VII, or special arbitration under Annex VIII. However, some writers
opine that the phrase by mutual consent means that no State party can be forced to refer the
case to arbitration or adjudication without their express consent.30 Given this ambiguity, a
dispute could arise between China and the Philippines on the interpretation or application of this
language in article 298. In such case, that dispute would be subject to the CBDS system in
section 2 of UNCLOS.101

98 Ibid.
99 Ibid.
100 Ibid.

What seems clear is that if there is a dispute on how to delimit the maritime boundary between
the EEZ measured from the coast of a claimant State and the territorial sea or EEZ claimed from
a disputed island, such a dispute would not be subject to the compulsory conciliation procedure.
This is because the maritime boundary could not be determined without addressing the issue of
which State has the better claim to sovereignty over the disputed island. Article 298 expressly
provides that:102
any dispute that necessarily involves the concurrent consideration of any unsettled dispute concerning
sovereignty or other rights over continental or insular land territory shall be excluded from such
submission

PROSPECTS FOR A CONTENTIOUS CASE UNDER PART XV


Notwithstanding Chinas declaration under 298 excluding certain categories of disputes, there is
a possibility that legal disputes could arise between claimant States to the Spratly Islands
concerning the interpretation or application of provisions of UNCLOS which would be subject to
the CBDS in UNCLOS.103

DISPUTES ON PROVISIONS NOT EXCLUDED BY ARTICLE 298

101 Beckman_MIMA_SCS_Conference_12-13_Dec_2011_draft_10_Dec1
102 Ibid.
103 Ibid.

The CBDS in UNCLOS would apply to disputes between claimant States concerning the
interpretation or application of the provisions of UNCLOS which are not within the exclusion in
article 298. They include: 104
1. A dispute on whether a feature meets the definition of an island under Article 121(1)
because it is a naturally formed area of land, surrounded by water, which is above water
at high tide.
2. A dispute on whether an island is a rock which cannot sustain human habitation or
economic life of its own within article 121(3) and is therefore not entitled to an EEZ or
continental shelf of its own
3. A dispute on whether a feature is a low-tide elevation within article 13
4. A dispute on whether the use of straight baselines by a State is consistent with article 7
5. A dispute on the interpretation or application of article 6 on reefs
6. A dispute on whether a State has historic rights under customary international law to
fish in the waters claimed by another State as its EEZ
7. A dispute on whether a State, in a disputed area or area of overlapping claims, has
breached its obligations under Article 74 to make every effort to enter into provisional
arrangements of a practical nature and, during this transitional period, not to jeopardize or
hamper the reaching of the final agreement.
8. A dispute on whether a State has interfered with the sovereign right of another State to
explore and exploit the natural resources in its EEZ pursuant to article 56
9. A dispute on whether a State has lawfully arrested the fishing vessel of another State in
its EEZ under article 73
10. A dispute on whether a State has complied with the provisions for prompt release of
vessels and crew under article 298

DISPUTES CONCERNING AREAS IN DISPUTE AND AREAS NOT IN DISPUTE


104 Beckman_MIMA_SCS_Conference_12-13_Dec_2011_draft_10_Dec1

One of the consequences of the Joint Submission of Malaysia and Vietnam to the Commission on
the Limits of the Continental Shelf and the Notes Verbale which followed is that it has become
clear that the Southeast Asian claimants do not accept that China has rights to any resources in
and under the waters within the nine dashed lines based on a claim of historic waters or historic
rights. They are likely to argue that the nine dashed line map has no legal significance under
UNCLOS or international law except to indicate that China has a historic claim to sovereignty
over the islands inside the nine dashed line. They are also likely to argue that any claims to
sovereign rights over the resources must be based on maritime zones measured from land
territory or islands, and that any claims to rights and jurisdiction in the waters surrounding the
features in the South China Sea is governed by the provisions of UNCLOS discussed above (as
opposed to any concept of historic rights or historic waters)105
China could assert that its nationals have a right to fish in the 12 nm territorial sea adjacent to
any feature inside the nine dashed line which meets the definition of island. China could also
assert that its fishing vessels have the right to fish in an EEZ claimed from the islands over which
it claims sovereignty, notwithstanding the fact that such islands may be occupied by other
claimants. China could further assert that it has historic rights under general international law to
fish in the waters inside the nine-dashed line. China might conceivably also assert that it has
historic rights to exploit the resources of the seabed in areas inside the nine-dashed line.106
If some of these assumptions are correct, there is a distinct possibility that a legal dispute could
arise between China and a Southeast Asian claimant State which would be subject to the
compulsory binding dispute settlement system in section 2 of Part XV of UNCLOS. Consider the
following scenarios.107
Scenario 1. A fishing vessel flying a Chinese flag fishes in waters surrounding features in the
Spratly Islands which are claimed by a Southeast Asian State as its EEZ. The relevant area is
more than 12 nm from any large island claimed by China. The Southeast Asian State arrests the
105 Beckman_MIMA_SCS_Conference_12-13_Dec_2011_draft_10_Dec1
106 Ibid.
107 I Beckman_MIMA_SCS_Conference_12-13_Dec_2011_draft_10_Dec1

Chinese fishing vessel for illegally fishing in its EEZ in waters which it asserts are not in
dispute. China protests the arrest and claims that its fishing vessel had a right to fish in this area
under UNCLOS and general international law. A dispute will have arisen between the two parties
on the interpretation of UNCLOS. The Southeast Asian claimant can unilaterally invoke the
dispute settlement system in section 2 of Part XV. The Southeast Asian claimant can argue that
the Chinese fishing vessel had no right to fish in an area of its EEZ that is more than 12 nm from
any island claimed by China. China would have to assert that the arrest took place in a disputed
area either because that area is also within its EEZ measured from an island it claims, or because
it has historic rights to fish in the area. If China argued that the area in question is within the
EEZ of an island which is not a rock under article 121(3), the tribunal would have to interpret
and apply the ambiguous language in article 121 (3) to a particular island in the South China Sea.
In particular, it may have to determine whether the relevant island is capable of sustaining human
habitation or economic life of its own, and hence entitled to an EEZ and or continental shelf of
its own. If China argues that the dispute is excluded by its declaration under article 298, the
Southeast Asian country could argue that the legal issues that arise from the facts can be resolved
without the tribunal having to decide who has sovereignty over the island and without delimiting
the maritime boundary. If the tribunal determines that it has jurisdiction, it could examine the
issue of historic rights under general international law, as it has the right under article 293 to
apply other rules of international law not incompatible with UNCLOS.108
Scenario 2. A Southeast Asian claimant issues licenses to a company to conduct a seismic survey
in an area off its coast which is within its EEZ and more than 12 nm from any disputed island. A
Government vessel from China intercepts the survey ship and directs it to stop its activities. The
Southeast Asian State protests, alleging that China is interfering with its sovereign right to
explore and exploit the natural resources in its EEZ in an area that is not in dispute. China
responds by stating that it has rights and jurisdiction in the area. The Southeast Asian State can
invoke the CBDS system in section 2 of Part XV. It can argue that this dispute is about the
interpretation and application of relevant provisions of UNCLOS, and is not a dispute on
boundary delimitation or on historic bays or titles. As in scenario 1, it can argue that the issue of
whether China has a right to interfere with the survey can be resolved without the tribunal having
108 Ibid.

to decide who has sovereignty over the disputed islands and without delimiting the maritime
boundary. China could challenge the jurisdiction of the tribunal, and argue that this dispute
would require the tribunal to make decisions which could ultimately affect the maritime
boundary. The tribunal would decide whether it has jurisdiction to decide the case.109
Scenario 3. A Southeast Asian claimant State issues a license to a company to begin exploratory
drilling in an oil concession block in an area of the South China Sea which overlaps with a
concession block of China in which China has previously issued a license to explore to another
company. China protests, claiming that such action in an area of overlapping claims is in breach
of the obligations in Articles 74 and 83 not to take unilateral action which would jeopardize or
hamper a final agreement on the maritime boundary. When its protest is ignored, China invokes
the CBDS mechanism in section 2 of Part XV, and requests ITLOS to grant provisional measures
and order the Southeast Asian claimant to cease such unilateral activities. The Southeast Asian
claimant challenges the jurisdiction of ITLOS and the arbitral tribunal on the ground that such a
dispute is excluded from jurisdiction because of Chinas declaration under Article 298.110
Numerous other scenarios could be articulated. The point is that there are situations where
disputes could arise which would be subject to the CBDS in section 2 of Part XV. In such cases,
it would be the tribunal which would decide whether it has jurisdiction, and whether the disputes
are excluded by Chinas declaration under article 298. If the tribunal did decide some of the legal
issues raised in the above scenarios, it would be a peaceful resolution of some of the difficult
legal issues which could assist that claimant States in clarifying their legal positions. This could
be a useful step in defining the areas in dispute which would be subject to joint development
arrangements.111

PROSPECTS FOR AN ITLOS ADVISORY OPINION


109 Beckman_MIMA_SCS_Conference_12-13_Dec_2011_draft_10_Dec1
110 Ibid.
111 Beckman_MIMA_SCS_Conference_12-13_Dec_2011_draft_10_Dec1

There is no provision in UNCLOS or in the Statute of ITLOS which permits States Parties or
institutions created by UNCLOS to request an advisory opinion from ITLOS on legal questions.
However, the Rules of the Tribunal, adopted in 1996 by the Tribunal pursuant to Article 16 of its
Statute, give the Tribunal the authority to give advisory opinions in certain circumstances. The
Tribunals advisory jurisdiction is based on article 21 of the Statute of the Tribunal, which states
that the jurisdiction of the Tribunal comprises all disputes and all applications submitted to it and
all matters specifically provided for in any other agreement which confers jurisdiction on the
Tribunal.112
Article 138 of the Rules of the Tribunal reads as follows:
1.

The Tribunal may give an advisory opinion on a legal question if an international agreement related to the
purposes of the Convention specifically provides for the submission to the Tribunal of a request for an

2.

advisory opinion.
A request for an advisory opinion shall be transmitted to the Tribunal by whatever body is authorized by or

3.

in accordance with the agreement to make the request to the Tribunal.


The Tribunal shall apply mutatis mutandis articles 130 to 137.

There is no express authority in either UNCLOS or the ITLOS Statute for this provision.
Furthermore, there is no precedent for it in the rules of the International Court of Justice. The
status and legal basis of Article 138 (1) has been the subject of analysis by government officials
and judges of the tribunal. Although some concern has been raised on whether the Tribunal
exceeded its powers in providing for advisory jurisdiction in Article 138 (1) of the Rules of the
Tribunal, commentators have concluded that there has largely been a positive reaction to the rule
empowering ITLOS to give advisory opinions in certain circumstances.113
If a body were to request an advisory opinion pursuant to article 138 (1), it would be difficult for
any State to challenge the authority of the Tribunal to give an Advisory Opinion. In any case,
even if such a challenge could be made, article 288 (4) of UNCLOS provides in the event of a
dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of

112 Ibid.
113 Ibid.

that court or tribunal. Therefore, it would be up to the Tribunal itself to determine whether it has
the authority it has vested in itself under its Rules.114
Under article 138 (1), the Tribunal can give an advisory opinion on a legal question if an
international agreement related to the purposes of the Convention specifically provides for the
submission to the Tribunal of a request for an advisory opinion. Three requirements must be
met.115
First, there must be an agreement between States that is related to the purposes of the UNCLOS.
This could be a multilateral agreement, a regional agreement or even a bilateral agreement, so
long as the agreement is related to the purposes of the Convention.116
Second, the agreement must specifically provide for the submission of a request for an advisory
opinion from the Tribunal. The international agreement should state who can request an advisory
opinion and set out the procedure for making such request. The agreement could provide that the
States Parties to the agreement can make the request when there is a consensus to do so. The
agreement could also establish a body and authorize that body to request an advisory opinion if it
believes an opinion would assist it in carrying out its functions and objectives.117
Third, the advisory opinion must be on a legal question. This presumably would be a legal
question relating to the Convention. The Tribunal is likely to follow the jurisprudence of the
International Court of Justice in determining whether there is a legal question.118
Would it be possible for some or all of the claimant States in the South China Sea to request an
advisory opinion on legal issues relating to the interpretation and application of UNCLOS? It
could be possible if two or more claimant States entered into an agreement relating to the
114 Beckman_MIMA_SCS_Conference_12-13_Dec_2011_draft_10_Dec1
115 Ibid.
116 Ibid.
117 Ibid.
118 Ibid.

purposes of the Convention, such as an agreement to cooperate to prevent pollution of the marine
environment in the South China Sea from ocean dumping. That agreement could establish a body
to institute rules and standards to prevent pollution of the marine environment in the South China
Sea from ocean dumping. It could also authorize that body to request an advisory opinion from
ITLOS on legal questions relating to their functions and purposes. For example, the body created
under the international agreement could request an advisory opinion on whether there are any
international rules and standards on the decommissioning and abandonment of offshore
platforms which are legally binding on States Parties to UNCLOS who are not parties to the
1972 London Convention or its 1996 Protocol.119
It may also be possible for claimant States to enter into an international agreement which would
enable them to request an advisory opinion on more controversial legal issues such as how to
interpret article 121 (3) on rocks which cannot sustain human habitation or economic life of their
own. The claimant States could enter into an international agreement to cooperate to clarify the
status of the features in the Spratly Islands. The agreement could establish a technical body to
review the features to determine which are completely submerged at low tide, which are low tide
elevations, which meet the definition of islands in article 121 (1), and which may be rocks as
defined in article 121 (3). The treaty could then authorize the technical body to request an
advisory opinion from ITLOS on legal questions relating to their functions and
responsibilities.120
One question which could arise is whether States not parties to the agreement would have the
right to present arguments to the Tribunal on a legal question if they believe that they have an
interest in the issue. A more difficult question would be whether a claimant State which is not a
party to the agreement could intervene to argue that the Tribunal should not give an advisory
opinion on a particular legal question because the opinion might irreparably prejudice their rights
in an ongoing territorial sovereignty dispute.121
119 Beckman_MIMA_SCS_Conference_12-13_Dec_2011_draft_10_Dec1
120 Ibid.
121 Ibid.

CONCLUSIONS
From the above discussion, the following conclusions can be drawn:122
1. The dispute settlement regime in UNCLOS cannot be used to resolve the disputes
concerning the merits of sovereignty claims to the islands in the South China Sea;
2. Certain legal disputes which could arise in the South China Sea are not subject to CBDS
because China has exercised its right under article 298 to opt out of the system of dispute
settlement for certain categories of disputes;
3. Disputes concerning Chinas objections to activities within the EEZ of Southeast Asian
claimants may be subject to the system of CBDS in section 2 of Part XV;
4. Such disputes are primarily about the interpretation and application of article 121 and the
rights and jurisdiction of China within the 9-dashed line;
5. If the Tribunal were to decide that the disputes fall within Article 298 because they
involve the first stages of delimitation, the disputes may be subject to compulsory
conciliation;
6. Two or more Claimant States could request an Advisory Opinion from ITLOS on legal
issues relating to the South China Sea if they comply with the requirements in Article 138
of the Tribunal;
7. An arbitral decision or advisory opinion could clarify some of the intentionally vague
provisions of UNCLOS such as Art 121(3);
8. An arbitral decision or advisory opinion could clarify the areas in dispute that can be
subject to joint development arrangements.

122 Beckman_MIMA_SCS_Conference_12-13_Dec_2011_draft_10_Dec1

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