FOREWORD

With the recent passage of Republic Act 9522 defining an UNCLOS-compliant

Archipelagic Baselines of the Philippines, I hereby enjoin the officers and rank and file of the Philippine Navy to be familiar with the provisions of the United Nations Convention on the Law of the Sea (UNCLOS).

Essentially, UNCLOS is a framework for the management, use, and development of the world’s oceans and defines the limits of the territorial sea, contiguous zone, the exclusive economic zone and continental shelf of a coastal or archipelagic state. The Philippines became the 11th of 155 countries so far to ratify UNCLOS. Its provisions advance peace and amity worldwide.

FERDINAND S GOLEZ Vice Admiral AFP

I. Introduction

Seventy-one percent of the earth’s surface is covered by ocean waters. The oceans have considerable effect in altering the world’s climate, weather conditions, air quality, and provides extensive mineral and petroleum resources. In addition, the fisheries and maritime produce are the source of 20% of the proteins consumed by humankind. However, with the continued exploitation, depletion, and deterioration of the ocean’s resources by man coupled with the strong maritime states’ domination at the expense of other countries’ interests, fueled the need among many governments to develop a comprehensive law of the sea to allow an equitable sharing of resources and avoid conflict and instability.

The First and Second UN Conferences on the Law of the Sea aimed to develop agreements that would govern uses of the oceans, establish seaward limits on the breadth of the territorial sea, and settle on the jurisdiction of coastal states over resources beyond the territorial sea. The first conference, held in 1958, produced four treaties: on the Territorial Sea and the Contiguous Zone, on the Continental Shelf, on the High Seas, and on Fishing and the Conservation of Living Resources on the High Seas. That conference, however, could not reach agreement on the maximum breadth of the territorial sea or the seaward extent of national jurisdiction over the continental shelf. The second conference, held in 1960, aimed to standardize the breadth of the territorial sea, but also failed to reach agreement, mainly because the United States and other maritime countries refused to accept a territorial sea broader than 6 miles.

Arising from the unresolved issues of the first two conferences, the need to elaborate a new regime for the oceans compelled the United Nations General Assembly to consider Ambassador Arvin Pardo of Malta’s call for an “an effective international regime over the seabed and the ocean floor beyond a clearly defined national jurisdiction," drawing attention to the potential riches of the ocean floor which could cause conflicting legal claims and instability among nations.

The Third UN Conference on the Law of the Sea (UNCLOS III) convened in 1973 with 160 countries participating in nine years of negotiations with the goal of creating a comprehensive framework for the regulation of all activities on, under, and over the ocean. Important features of the Convention include navigational rights, territorial sea limits, economic jurisdiction, legal status of resources on the seabed beyond the limits of national jurisdiction, passage of ships through narrow straits, conservation and management of living marine resources, protection of the marine environment, a marine research regime and, a binding procedure for the settlement of disputes between States. In 1982, the UN Convention on the Law of the Sea was adopted, despite strong objections to many of the provisions of Part XI, on seabed mining from the industrialized states. On 16 November 1994, the UN Convention on the Law of the Sea entered into force, and presently, around 138 countries including the European Union have become parties to the agreement.

II. General Information

1. What is UNCLOS?

The law of the sea is one of the oldest disciplines in international law. It is primarily concerned with the rules which bind states in their international relations concerning maritime matters which are basically molded by the political, geographical and economic relations of states.

2. What is a Treaty?

A treaty is an international agreement embodied in a single formal instrument made between entities that are subject to international law possessed of international states and treaty-making capacity, intended to create rights and obligations, or to establish relationships. The earliest known treaty on the sea is the “Treaty of Tordesillas” between Spain and Portugal which divided the Atlantic Ocean into two where both parties were given the right to exploit and own the lands found in their respective areas.

Treaties are binding only upon the states parties to them, their relations with non-party states continue to be regulated by customary law; however, the provisions of treaties may become binding upon other states if they pass into the next source of the law of the sea, which is customary international law.

3. What is the general rule if there is conflict of Local Law and International Law?

Whenever there is a conflict between the Convention or Treaty and the Local Law. Decisions of the courts vary depending on where the case would be filed. Courts of most states seek to avoid conflicts by interpreting local law so as not to contradict international law on the basis that the state is not to be presumed to intend to fail in the discharge of its international obligations. In other words, local law must prevail. Conversely, if the case is brought before an international tribunal, it will uphold international law.

The British practice is that when municipal legislation is not compatible with a treaty, the municipal law will continue to be applied. On the other hand, when the treaty and statute are on equality, a new treaty prevails over an earlier statute but it is also the case that a new statute prevails over a treaty. This is the position of the United States, which has also been traditional in Western Europe. In the case of the Philippines, under the Philippine Constitution, the Supreme Court has the power to declare a treaty or executive agreement as unconstitutional.

4. What is Customary international law?

Customary international law is referred to as “the international custom, as evidenced by practice accepted as law.”

There are two elements of customary international law: 1. A general and consistent practice adopted by states, which may not necessarily be universally

accepted. 2. “Opinio Juris” or the conviction that the practice is one, which is either required or, allowed

by customary international law.

Customary international law is evident in the law of the sea. For instance, the determination of national maritime boundaries was a product of norms dictated by the world’s maritime powers and were mainly based on the capability of these countries to protect the sea approaches.

III. Types of Waters Recognized Under The Convention

There are seven types of waters with varying regimes recognized under the Convention, namely: (1) Internal Waters; (2) Territorial Sea; (3) Archipelagic Waters; (4) Contiguous Zone; (5) 200-mile Exclusive Economic Zone; (6) Straits used for International Navigation; and (7) High Seas.

a. Internal Waters – All waters on the landward side of the baselines of the territorial sea from which the width of the territorial sea is measured. Thus, internal waters consist of ports, harbors, rivers, lakes, canals, and all waters on the landward side. The baseline is normally the low-water mark along the shore. Under Article 2 of the Convention, internal waters fall under the sovereignty of the coastal state; therefore, the coastal state has the right to prohibit entry into its ports by foreign ships. However, there are two exceptions:

1. When a right of innocent passage has previously existed;2. When a ship is seeking refuge from a storm or is severely damaged.

b. Territorial Sea - This refers to the waters adjacent to the coasts or a state, excluding the internal waters in bays and gulfs, which do not form part of the open sea. The Convention fixes the maximum breadth of the territorial sea a state may claim at 12 miles seaward from the baseline.

Innocent Passage - The Convention confirms the right, established in customary international practice of all ships to innocent passage through the territorial sea. It specifies activities of ships not considered innocent. The regime of innocent passage does not include the right of over flight or submerged passage.

Transit Passage - The Convention also confirms the right, established in customary international practice, of all ships and aircraft to unimpeded passage in the normal mode through, over, and under the territorial sea when transiting an international strait without a high-seas route through it.

c. Archipelagic Waters – All waters inside the archipelagic baselines are archipelagic waters. The archipelagic state exercises sovereignty over said waters as stipulated in Part IV of the Convention.

Archipelagic Sea Lanes Passage – The exercise of the right of navigation and over flight in the normal mode for the purpose of continuous, expeditious, and unobstructed transit between one part and another of the high seas or an exclusive economic zone. The archipelagic sea lanes passage may be exercised through the routes normally used for international navigation.

d. Contiguous Zone - The Convention recognizes the right of a state to enforce its customs, fiscal, immigration, and sanitary laws in a contiguous zone adjacent to the seaward limit of the territorial sea, which can extend as far as 24 miles from the baseline. The freedoms of navigation and over flight, as well as other internationally lawful uses of the seas related to these freedoms, including the right to lay submarine cables and pipelines, are the same in the contiguous zone as on the high seas.

e. Exclusive Economic Zone (EEZ) - The Exclusive Economic Zone (EEZ) is the zone extending seaward from the outer limit of the territorial sea out to 200 miles from the baseline. The coastal state has sovereign rights within this zone for the exploration and exploitation of living and non-living resources, establishment and use of artificial islands, installations and structures, and the preservation of the marine environment.

The freedoms of navigation and over flight, as well as other internationally lawful uses of the seas related to these freedoms, including the right to lay submarine cables and pipelines, are the same in EEZs as on the high seas.

Foreign states may also undertake military activities in EEZs, with due regard for the rights and duties of the coastal state. Foreign vessels fishing for straddling stocks and highly migratory species in the portions of the high seas adjacent to EEZs must have due regard for the impact their actions might have on coastal state interests.

f. Straits Used for International Navigation – are those between one area of the high seas zone and another part of the high seas or an exclusive economic zone through which all ships and aircraft have the right of transit passage.

g. High Seas– are all parts of the sea that are not included in the exclusive economic zone, the territorial sea, or the internal waters of a state or in the archipelagic waters of an archipelagic state. It is open to all states.

IV. Continental Shelf

The continental shelf comprises the sea bed and subsoil of the submarine area that extend beyond the territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin or to a distance of 200 nautical miles from the baselines from which the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.

Coastal states have the right to exploit the mineral resources of their continental shelf but must pay a small commission through the International Sea-Bed Authority (ISBA) to other states from the proceeds of any exploitation of resources beyond 200 miles from shore.

Coastal state jurisdiction over the continental shelf does not affect the legal status of the waters above. Thus, beyond the territorial sea, the freedoms of navigation and over flight, as well as other internationally lawful uses of the seas related to these freedoms, including the right to lay submarine cables and pipelines, are the same above a continental shelf as on the high seas.

V. Types Of Regimes of Waters Recognized Under The Convention

1. What is a Coastal State?

A coastal state is a State comprised of a broad land area bordered by the sea.

Figure 1: computer-generated map shows the geomorphic and tectonic features of the United States

2. What is an Archipelagic State?

An “archipelagic state” according to Article 46 of the Convention is a State consisting of a group of islands, including parts of islands, interconnecting waters and other natural features which form an intrinsic geographical, economic, and political entity, or which have been historically regarded as such.

3. What is a Land-locked State?

A “land-locked state” according to Article 124 of the Convention is a State that has no seacoast.

4. What are Enclosed or Semi-enclosed Seas?An "enclosed or semi-enclosed sea" is a gulf, basin, or sea surrounded by two or more

States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States.

5. What are Geographically-disadvantaged States?

"Geographically disadvantaged States" are coastal States, including States bordering enclosed or semi-enclosed seas, whose geographical situation makes them dependent upon the exploitation of the living resources of the exclusive economic zones of other States in the sub-region or region for adequate supplies of fish for the nutritional purposes of their populations or parts thereof, and coastal States which can claim no exclusive economic zones of their own.

VI. Rights of the Different Types Of Regimes

1. What are the rights of a Coastal State?

a. Coastal states exercise sovereignty over its internal waters, and territorial sea.

The internal waters of a coastal state are defined as all waters on the landward side of the baselines of the territorial sea from which the width of the territorial sea is measured. The baseline is normally the low-water mark along the shore.

The Territorial Sea refers to the waters adjacent to the coasts or a state, excluding the internal waters in bays and gulfs, which do not form part of the open sea. The Convention fixes the maximum breadth of the territorial sea a state may claim at 12 miles seaward from the baseline. Foreign vessels are allowed “innocent passage” through these waters.

Innocent Passage - The Convention confirms the right, established in customary international practice of all ships to innocent passage through the territorial sea. It specifies activities of ships not considered innocent. The regime of innocent passage does not include the right of over flight or submerged passage.

b. Coastal states have sovereign rights not territorial rights over the Exclusive Economic Zone (EEZ) for the exploration and exploitation of living and non-living resources, establishment, and use of artificial islands, installations, and structures, and the preservation of the marine environment.

Exclusive Economic Zone (EEZ) - The Exclusive Economic Zone (EEZ) is the zone extending seaward from the outer limit of the territorial sea out to 200 miles from the baseline.

c. Coastal states have the right to enforce its customs, fiscal, immigration, and sanitary laws in a contiguous zone adjacent to the seaward limit of the territorial sea, which can extend as far as 24 miles from the baseline. The freedoms of navigation and over flight, as well as other internationally lawful uses of the seas related to these freedoms, including the right to lay submarine cables and pipelines, are the same in the contiguous zone as on the high seas.

d. Coastal States have sovereign rights over their continental shelf. The continental shelf comprises the sea bed and subsoil of the submarine area that extend beyond the territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin or to a distance of 200 nautical miles from the baselines from which the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.

Coastal states have the right to exploit the mineral resources of their continental shelf but must pay a small commission through the International Sea-Bed Authority (ISBA) to other states from the proceeds of any exploitation of resources beyond 200 miles from shore.

2. What are the rights of an Archipelagic State?

a. An “archipelagic state” exercises sovereignty over its archipelagic waters. Archipelagic waters comprise all the waters inside the archipelagic baselines, which are composed of straight baselines that connect the outermost islands and reefs of the archipelagic state.

b. Archipelagic states exercise sovereignty over its internal waters, and territorial sea.

The internal waters of an archipelagic state are composed of rivers, bays, and ports within its archipelagic waters defined by straight baselines.

c. Archipelagic states have the right to designate specific sea-lanes for purposes of transit passage within its archipelagic waters.

Archipelagic Sea Lanes Passage – The exercise of the right of navigation and over flight in the normal mode for the purpose of continuous, expeditious, and unobstructed transit between one part and another of the high seas or an exclusive economic zone. The archipelagic sea-lanes passage may be exercised through the routes normally used for international navigation.

Straits Used for International Navigation – are those between one area of the high seas zone and another part of the high seas or an exclusive economic zone through which all ships and aircraft have the right of transit passage.

a. Archipelagic states have sovereign rights not territorial rights over the Exclusive Economic

Zone (EEZ) for the exploration and exploitation of living and non-living resources, establishment, and use of artificial islands, installations, and structures, and the preservation of the marine environment.

b. Archipelagic states have the right to enforce its customs, fiscal, immigration, and sanitary laws in a contiguous zone adjacent to the seaward limit of the territorial sea, which can extend as far as 24 miles from the baseline. The freedoms of navigation and over flight, as well as other internationally lawful uses of the seas related to these freedoms, including the right to lay submarine cables and pipelines, are the same in the contiguous zone as on the high seas.

c. Archipelagic states have sovereign rights over their continental shelf. Archipelagic states have the right to exploit the mineral resources of their continental shelf but must pay a small commission through the International Sea-Bed Authority (ISBA) to other states from the proceeds of any exploitation of resources beyond 200 miles from shore.

3. What are the rights of a Land-locked State?

a. Land-locked States have the right of access to and from the sea and freedom of transit through the territory of Transit States by all means of transport.

A Transit State is a State, with or without a seacoast, situated between a land-locked State and the sea, through whose territory traffic in transit passes.

b. Traffic in transit shall not be subject to any customs duties, taxes or other charges except charges levied for specific services rendered in connection with such traffic. Means of transport in transit and other facilities provided for and used by land-locked States shall not be subject to taxes or charges higher than those levied for the use of means of transport of the transit State.

c. For the convenience of traffic in transit, free zones or other customs facilities may be provided at the ports of entry and exit in the transit States, by agreement between those States and the land-locked States.

4. What are the rights of Countries with Enclosed or Semi-enclosed Seas?

States that border an enclosed or semi-enclosed sea should cooperate with each other in the exercise of their rights and in the performance of their duties under UNCLOS. Through direct cooperation with each other or an appropriate regional organization:

a. To coordinate the management, conservation, exploration and exploitation of the living resources of the sea;

b. To coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment;

c. To coordinate their scientific research policies and undertake where appropriate joint programmes of scientific research in the area;

d. To invite, as appropriate, other interested States or international organizations to cooperate with them in furtherance of the provisions of this article.

5. What are the rights of a Geographically-disadvantaged States?

Geographically disadvantaged 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 zones of coastal states of the same sub-region or region.

VII. UNCLOS and the Philippines’ National Territory

1. What is the Philippines’ Archipelagic Doctrine?

The concept of Archipelagic Doctrine as stated under the second sentence of the 1973 Philippine Constitution is that “the waters around, between, and connecting the islands of the archipelago irrespective of their breadth and dimensions, form part of the internal waters of the Philippines.” This is intended to project the idea that the Philippines is an archipelago and bolster the archipelagic concept which the Philippines, together with Indonesia, Mauritius, Fiji and other archipelago states similarly situated had steadfastly espoused in the Convention. Likewise, the second sentence has been lifted from the third whereas clause of RA No. 3046 as amended by RA No. 5446.

2. What is the position of the Philippines regarding the extent of its territorial and internal waters?

The Philippine position was embodied in RA No. 3046 as amended by RA No. 5446, which declared that:

a. All the waters within the limits set forth in the Treaty of Paris of December 10, 1898 and the Treaty of Washington of November 7, 1900 both between Spain and US; and the Treaty concluded between US and Great Britain on January 2, 1930, have always been regarded as part of the territory of the Philippines.

b. All the waters around, between and connecting the various islands of the Philippine Archipelago, irrespective of their width or dimension, have always been considered as necessary appurtenances of the land territory, forming part of the inland or internal waters of the Philippines.

c. All the waters beyond the outermost island of the archipelago but within the limits of the boundaries set forth in the afore-mentioned treaties comprise the territorial sea of the Philippines.

d. The baselines from which the territorial sea of the Philippines is determined consist of straight lines joining appropriate points of the outermost islands of the archipelago.

3. What is the extent of the Philippines’ Exclusive Economic Zone (EEZ)? What are the country’s rights?

Under Presidential Decree No. 1599 (1978), the Exclusive Economic Zone of the Philippines has an estimated area of 652, 800 sq. nautical miles. The Philippines’ exercises sovereign rights in its EEZ to explore and exploit, conserve and manage the living or non-living, renewable and non-renewable natural resources of the seabed, including the subsoil and the superjacent waters, and with regard to other activities for the economic exploitation and exploration of the resources of the zone, such as the production of energy from the water, currents and winds.

The Philippines also have exclusive rights and jurisdiction in the establishment and utilization of artificial islands, offshore terminals, installations, and structures, the preservation of the marine environment, including the prevention and control of pollution, and scientific research in the EEZ.