UNCLOS

A Report on Public International Law

Submitted to:
Judge Michelia O. Capadocia

Submitted by:
Terrylou A. Damasing-Abonitalla
Mamonie M. Natangcop

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 UNCLOS
It is an international agreement that defines the rights and responsibilities
of nations in their ownership and use of the world’s oceans, establishing
guidelines for environment business and management of maritime national
resources.

The convention took place at Montegro Bay, Jamaica, signed on December

1, 1982 and entered into force on November 16, 1994.

Importance of the Seas:

1. They are a medium of communication

2. They contain vast natural resources

Grotius – elaborated the doctrine of the opens seas which considers the
high seas as res communis accessible to all

Doctrine of open seas – recognized as permissible the delineation of a

maritime belt by littoral states as an indivisible part of its domain. This belt is
the territorial sea.

Convention on the Law of the Sea of 1982 – prevailing law on maritime

domain today. The provisions of such are a repetition of earlier convention
law or a codification of customary law.

UNCLOS replaced several treaties which originally and separately

conducted to establish territories, shelves, high seas and rules on fishing
and conservation of living resources of the high seas.

One of the primary achievements of UNCLOS was the introduction of

definition of terms regarding territorial waters and its borders.

At present, there are 162 parties to the convention.

The basic statement of the extent of a state’s sovereignty over waters is set
down in Article 2 of the 1982 Law of the Sea:

1. The sovereignty of a coastal State extends, beyond its land territory

and internal waters and, in the case of archipelagic State, its

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 archipelagic waters, to an adjacent belt of sea, described as the
territorial sea.
2. This sovereignty extends to the air space over the territorial sea as
well as to its bed and subsoil.
3. The sovereignty over the territorial sea is exercised subject to this
Convention and to other rules of international law.

Definition of Maritime Regimes under UNCLOS

Territorial Sea

The territorial sea is a belt of sea outwards from the baseline and up to 12
nautical miles beyond.

To understand the extent of the territorial sea one must begin with an
understanding of baselines. The baseline is the “low water line along the
coast as marked on large scale charts officially recognized by the coastal
State.”

There are 2 ways of drawing the baseline. The “normal” baseline or

“straight” baseline. The “normal” baseline is one drawn following “the low
water line along the coast as marked on large scale charts officially
recognized by the coastal state”. This line follows the curvatures or the
sinuosities of the coast and therefore would normally not consist of straight
lines. The “straight” baselines, instead of following the sinuosities of the
coast, are straight lines drawn connecting selected points on the coast
without appreciable departure from the general shape of the coast.

Sovereignty over Territorial Sea

The sovereignty of the coastal state over its territorial sea and the airspace
above it as well as the seabed under is the same as its sovereignty over its
land territory. However, the sea is subject to the right of innocent passage
by other states. The rule on innocent passage applies to ships and aircraft.
Submarines, moreover, must surface. Innocent passage is passage that is
not prejudicial to the peace, good order or security of the coastal state nor
contrary to recognized principles of international law.

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Internal Waters

All waters landwards from the baseline of the territory such as part of the
seas, rivers, lakes or bays. Sovereignty over these waters is the same in
extent as sovereignty over land. Unlike territorial waters, they are not
subject to the right of innocent passage by other states.

Archipelagic Waters

Article 8 (2) of the Convention which says: “Where the establishment of a

straight baseline in accordance with the method set forth in Article 7 has
the effect of enclosing as internal waters areas which had not previously
been considered as such, a right of innocent passage as provided in this
Convention shall exist in those waters.” Art. 53 of the Convention refers to
this type of internal water as “archipelagic waters” and says that [a]n
archipelagic State may designate sea lanes and air routes thereabove,
suitable for the continuous and expeditious passage of foreign ships and
aircraft through or over its archipelagic waters and the adjacent territorial
sea.”

Article I of the 1973 Constitution said: “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
assertion, together with the “straight base line method,” form the
“Archipelagic Principle.” This now also found in the 1987 Constitution.

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CONTIGUOUS ZONE

The contiguous zone is an area of water not exceeding 24 nautical miles

from the baseline. It thus extends 12 nautical miles (approximately 22
kilometers) from the edge of the territorial sea. The coastal state exercises
authority over that area to the extent necessary to prevent infringement of
its customs, fiscal, immigration or sanitation authority over its territorial
waters or territory and to punish such infringement.

EXCLUSIVE ECONOMIC ZONE OR PATRIMONIAL SEA

The area extending not more than 200 nautical miles (approximately 370
km) beyond baseline.

State has rights over the economic resources of the sea, seabed and subsoil
but not right of navigation and over flight of other states

THE CONTINENTAL (ARCHIPELAGIC) SHELF

The continental shelf, archipelagic or insular shelf for archipelagos, refers to

1. The seabed and subsoil of the submarine areas adjacent to the

coastal state but outside the territorial sea, to a depth of two hundred
meters or beyond that limit, to where the depth allows exploitation
2. The seabed and subsoil of areas adjacent to islands. The coastal state
has the right to explore and exploit its natural resources, to erect
installations needed and to erect a safety zone over its installations
with a radius of 500 meters. The right does not affect the right of
navigation of others. Moreover, the right does not extend to non-
resource material in the shelf area such as wrecked ship and their
cargoes.

THE DEEP SEA BED

These are areas of the sea-bed and the ocean floor and their subsoil which
lie beyond any national jurisdiction. These are the common heritage of
mankind and may not be appropriated by any state or person.
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ISLANDS

A naturally formed area of land, surrounded by water which is above water

at high tide, must sustain human habitation or economic life of their own in
order to have EEZ or else will only have territorial sea.

THE HIGH SEAS

Is defined as all parts of the sea that are not included in the territorial sea or
in the internal waters of a States.

MARITIME FEATURES

 The first are Islands – defined as a naturally formed area of land,

surrounded by water and above water at high tide; entitled to a 200
nm EEZ, which gives the country the sole right to exploit the
resources within it such as fish and also mineral and oil reserves, if
any.

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  Second are Rocks and Reefs that are mostly below water but have
rocky protrusions above water during high tide. The important point
under UNCLOS states that a maritime feature is a rock if it cannot
sustain human habitation or economic life on its own. Such mostly
submerged features are entitled to only a 12 nm territorial sea and no
EEZ.
 The third type of maritime features called “low tide elevation” are
submerged rocks and reefs that are not visible above water. This type
of maritime feature is not entitled to any territorial sea or EEZ.

TERRITORIAL SOUTH CHINA SEA DISPUTES

 The South China Sea Islands consist of over 250 islands, atolls, cays,
shoals, reefs, and sandbars in the South China Sea, none of which
have indigenous people, few of which have any natural water supply,
many of which are naturally under water at high tide, and many of
which are permanently submerged.The features are grouped into
three archipelagos, the Spratly Islands,Paracel Islands andPratas
Islands plus the Macclesfield Bank and Scarborough Shoal.

 South China Sea region is believed to hold large reserves of oil and
natural gas though the quantum of reserves is still being debated. As
per the Ministry of Geological Resources and Mining in China, the
area holds close to 17.7 billion tons of crude oil though other
international sources state the crude oil reserves to be in the region of
1.1 billion tons. As per the US Energy Information Administration
(EIA), the region is believed to hold around 25.5 trillion cubic metres
to 56.6 trillion cubic meters of natural gas. The large reserves of crude
oil and natural gas has driven all claimant nations to aggressively
claim sovereignty over the islands.

CONTESTED ISLAND GROUPS

 The Spratly Islands, disputed between the China, Taiwan, and

Vietnam, with Malaysia, Brunei, and the Philippines, claiming parts of
the archipelago. The Spratlys is one of the major archipelago in the

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 South China Sea that comprise more than 30,000 islands and reefs.
The islands have no indigenous inhabitants. Natural resources
include fish and guano, as well as the possible potential of oil and
natural gas reserves.Economic activity has included commercial
fishing, shipping andguano mining.

 The Paracel Islands includes about 130 small coral islands, reefs,
banks and other maritime features in the South China Sea. It is
controlled and occupied by China, and also claimed by Taiwan and
Vietnam.

 The Pratas Islands, disputed between China and Taiwan but occupied
by Taiwan. The Pratas Islands, also known as the Dongsha Islands, are
an atoll in the north of the South China Sea consisting of three
islets.China claims the islands, butTaiwan controls them and has
declared them a national park. The main island of the group—Pratas
Island—is the largest of the South China Sea Islands.

 The Macclesfield Bank, disputed between the People's Republic of

China, Taiwan and Vietnam, with no land above sea-
level.Macclesfield Bank is an elongated sunken atoll of underwater
reefs and shoals in the South China Sea, although completely
submerged without any emergent cays or islets, it is one of the largest
atolls of the world which includes a number of geographically
separate submarine features.

 The Scarborough Shoal, it is a disputed territory between China,

Philippines, and Taiwan, with only rocks above sea-level but access to
the territory has been restricted by China. Scarborough Shoal forms a
triangle-shaped chain of reefs and its surrounding area are rich
fishing grounds – the atoll's lagoon provides some protection for
fishing boats during inclement weather.

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COUNTRIES CLAIMING OWNERSHIP

• China claims by far the largest portion of territory.

• Taiwan claims to the islands are based on its assertion that Taiwan
and its Kuomintang Gov’t are the true China. Both Taiwan and China
say that the islands were discovered by Chinese navigators, used by
Chinese fishermen for centuries.

 Vietnam hotly disputes China’s historical account, saying China had

never claimed sovereignty over the islands before the
1940s.Vietnam’s claim to Paracels goes back to the early 19th century
when the Vietnamese Emperor Gia Long ordered a survey and
mapping of the Paracels in 1816 and claimed to have the documents
to prove it.

• Malaysia and Brunei also claim to territory in the South China Sea that
they say falls within their economic exclusions zones, as defined by
UNCLOS & therefore entitled to its territory and resources.

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PHILIPPINES’ CLAIM

• The Philippines began claiming parts of the Spratly Islands or the

Kalayaan Island Group as called by the Philippines in the 1950s when
Tomas Cloma, a Filipino navigator and businessman discovered them
unoccupied. Cloma issued a proclamation to the whole world
claiming ownership & occupation of the Spratlys. The Cloma
proclamation was the first assertion of title to the Spratlys after Japan
renounced its ownership of the islands in 1951 & 1952.. On 1978,
Pres. Marcos of the Philippines issued Presidential Decree No. 1596
declaring the Spratly Islands as Philippine territory.

• Since then, the Philippines has promulgated laws on archipelagic

baselines and the geographic scope of its exclusive economic zone
and placed the Kalayaan Island Group under the administrative
jurisdiction of Palawan Province.

• Other claim of the Philippines, using the “regime of islands” principle

under the UN Convention on the Law of the Sea (UNCLOS), the
coordinates show Scarborough Shoal or Bajo de Masinloc as
renamed by the Philippines to be within the country’s EEZ.

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CHINA’S CLAIM

China’s claim to the South China Sea is based in history, dating back to
records from the Xia and Han dynasties, as early as the 2nd century. China
delineates its claims via the nine-dash line, which Chiang Kai Shek
advanced in 1947. During China’s republican era, China surveyed, mapped
and named 291 islands and reefs in the region. China's sovereign rights
and positions are formed in the course of history and this position has been
held by Chinese Government for long. So basically, they claimed it first, and
since everyone else were just starting their state at that time, not many
people give it a serious thought until a while later.

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China’s nine-dashed lines. Image

The nine-dash line has been used by China to show the maximum extent of
its claim without indicating how the dashes would be joined if it was
continuous and how that would affect the extent of the area claimed by
China.

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During WW2, when Japan ran wild in the region, they designated the
islands to the administrative region of Taiwan, which was then given back
to China (ROC) at the end of the war. In all logical theory, this means that
the islands attached to the administrative region Japan put under Taiwan
at the times (which included virtually all the islands in dispute.) are
included.

As early as 1958, the Chinese government released a document pertaining

to its territorial limits, stating that China's territorial waters cover twelve
nautical miles, and announcing that this provision applies to "all the
territory of People's Republic of China, including the Chinese mainland and
offshore islands, Taiwan and its surrounding islands, the Penghu Islands,
the Dongsha Islands, Xisha Islands, Zhongsha Islands, the Nansha Islands
and other islands belonging to China.

To cement its position, China has recently built seven artificial islets over
uninhabited reefs and shoals. China believes that it controls the 80-90
percent of the 1.35 million square-mile sea that falls within the “nine-
dashed line,” a feature drawn on Chinese maps by its Nationalist
government in 1947.

Despite Philippines’ exerted efforts of bringing the matter to UNCLOS,

China has instead chosen to sabotage the Philippines' arbitration efforts by
raising technicality-procedural questions. China has deployed three related
arguments that aim to put into question whether the arbitral tribunal
should exercise jurisdiction at all. China cites that the UNCLOS doesn't have
the mandate to address sovereignty-related (title to claim) questions, China
has opted out of compulsory arbitration on issues that concern its territorial
claims, among others. China also claims that it is premature to resort to
compulsory arbitration, since alternative mechanisms haven't been fully
exhausted.
Rooting its own claims in international law, China argued that the
Philippines’ maritime delineation/entitlement claims were merely territorial
sovereignty claims in disguise.

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CONCLUSION / COMMENTARIES

The UNCLOS states three (3) different types of maritime features that allow
for the waters surrounding a country to be claimed as part of its territory, as
reported earlier: “Island’s territorial sea which is 12 nautical mile
(approximately 22 kilometers), 200 nm (approximately 370 km) exclusive
economic zone (EEZ), which gives the country the sole right to exploit the
resources within it such as fish and also mineral and oil reserves, if any.
“Rocks or reefs” that are mostly below water but have rocky protrusions
above water during high tide. The important point under UNCLOS states
that a maritime feature is a rock if it cannot sustain human habitation or
economic life on its own. The third type of maritime features called “low
tide elevation” are submerged rocks and reefs that are not visible above
water. This type of maritime feature is not entitled to any territorial sea
or EEZ.”

“The nine-dash line has been used by China to show the maximum extent
of its claim without indicating how the dashes would be joined if it was
continuous and how that would affect the extent of the area claimed by
China.] The Philippines, Vietnam, Malaysia, Brunei and Indonesia have all
officially protested over the use of such a line. Immediately after China
submitted a map to the UN including the nine-dash lines territorial claim in
the South China Sea on 7 May 2009, the Philippines lodged a diplomatic
protest against China for claiming the whole of South China Sea illegally.
Vietnam and Malaysia filed their joint protest a day after China submitted its
nine-dash line map to the UN. Indonesia also registered its protest, even
though it did not have a claim on the South China Sea. “ (Wikipedia)
China's nine-dash map submission to the UN in 2009 heightened the
dispute. According to Philippine President Benigno Aquino III, "China’s nine-
dash line territorial claim over the entire South China Sea is against
international laws, particularly the United Nations Convention of the Laws
of the Sea (UNCLOS)".] Vietnam also rejected the nine-dash line claim, citing
that it is baseless and against the UNCLOS. In 2010, at a regional
conference in Hanoi, Secretary of State Hillary Clinton announced that "The
United States has a national interest in freedom of navigation, open access
to Asia's maritime commons, and respect for international law in the South
China Sea”.

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China was arguing that its exclusive claim was based on “historical facts”
and international law. According to Supreme Court Associate Justice
Antonio Carpio, “ historical facts have no bearing whatsoever in the
resolution of maritime disputes”, under the UNCLOS.
Some States feared that if China would have complete authority and
jurisdiction over the disputed islands, their control over the South China Sea
would allow them to dominate a major trade route through which most of
its imported oil flows. It would also allow China to disrupt, or threaten to
disrupt, trade shipments to all countries in East and Southeast Asia — as
well as deny access to foreign military forces, particularly the United States.
Sovereignty over the region could give China a level of energy security and
independence far beyond what it currently possesses.

The Philippines brought their claim under the United Nations Convention
on the Law of the Sea (UNCLOS), to which both states are parties. China
scoffed, claimed that the Tribunal had no jurisdiction, and boycotted the
proceedings.

Also, since being unable to challenge China militarily, the Philippines

turned to the law. In 2013, the Philippines filed a case in the Permanent
Court of Arbitration in The Hague, asserting its rights to exploit the 200-
nautical mile Exclusive Economic Zone that extends from the archipelago
into the South China Sea.

Unable to ignore the dispute, however, China released a position paper

that looked suspiciously like a legal brief. Rooting its own claims in
international law, China argued that the Philippines’ maritime
delineation/entitlement claims were merely territorial sovereignty claims in
disguise. Since the tribunal cannot consider sovereignty claims, it therefore
had no jurisdiction. The tribunal considered China’s position paper as the
state’s position and when holding that, the Tribunal then acquired
jurisdiction over the disputed islands.

The tribunal has then put China in a bind. China immediately stated that
the judgment was “null and void” and that any future judgments would
have no effect. But it would be hard to imagine that China could
completely ignore any future judgment. International pressure on China to
comply would be great. The U.S., which has spent five years exerting

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diplomatic pressure on China over the South China Sea, has welcomed the
decision.

(Insert Video Clip from an interview of SC Associate Justice Antonio Carpio

showing evidence:
• Why Philippines would win in an arbitration case against China.
• He also showed China’s evidence which weakens their defense.
• Finally, he stated that even if we will win the arbitration case, still
China would not respect it.
• What the Philippines should do is to strengthen its defense force
which is the no.1 obligation of a State )

According to Fr. Bernas in his book International Law, peaceful settlement

of disputes is compulsory. Under Part XV of the 1982 Convention States are
required to settle peacefully disputes concerning the Convention. If a
bilateral settlement fails, Art.285 requires submission of the dispute for
compulsory settlement in one of the tribunals clothed with jurisdiction. The
alternatives are the International Tribunal for the Law of the Sea, the ICJ, or
an arbitral tribunal constituted under the Convention.

Legally, most of UNCLOS is binding on all nations, regardless of whether

they are signatories, because the treaty codifies preexisting international
custom. A breach by China of law that is foundational to maritime
commerce throughout the globe would be a serious international
transgression. Refusal to comply with any decision would have strong
reputational costs for a country seeking to become a global leader,
especially as friendly relations with its neighbors are especially crucial to
China’s rise. China is a member of 130 international organizations that
apply international law. China thus needs the world to believe that its
commitments under international law are credible, especially in the trade
and maritime realms on which its economy relies.

While it is true that we, the Philippines have a definite and well recognized
basis for claiming the Spratlys which is the UNCLOS as well as national
security and terra nullius, it is believed that we can suppress China’s claims
against ours because we do not have funds and resources to challenge
China into military conflict. Our diplomatic relations with China are
indespensable to our economy.

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(Insert Video Clip from an interview of the international law expert, stating
China may have rights on the disputed islands under the UNCLOS.)

The truth is: the Philippines can't only rely on UNCLOS to address this
critical situation, and it will need the help of its allies (particularly the United
States and Japan) and partners across the world as well as the full support
of the Filipino nation.

What is needed for the resolution of this dispute is multilateral talks by all
the parties involved in the conflict. This would not only establish a mutual
foundation of understanding, but also send a message to the countries
involved that there is a willingness to compromise and work together.

References:
Bernas, S.J. Public International Law, 2014 ed.
Bernas, S.J. The 1987 Constitution of the Philippines: A Commentary, 2009
ed.
Read The Diplomat, November, 2015
BBC News, Current Events
CNN Philippines.

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