Chapter 7 THE LAW OF THE SEA A. Freedom of the Seas A ship on high seas enjoys the freedom to navigate. This is along-standing principle of the law of the sea. The United Nations Convention on the Law of the Sea (UNCLOS) which has already come into force reinforces this freedom by subjecting such a vessel to the exclusive jurisdiction of the flag state. The S.S Lotus, PCIJ Ser. A. No 10 (1924) is therefore doubt-faced in this regard: on the one hand, it repeats the traditional doctrine on the exclusive jurisdiction of the flag state; on the other hand it ruled against the position of France which rejected Turkish assertions of jurisdiction. It ruled that as effects of the crime were on a vessel that was assimilated to Turkish territory, the offending French could be tried and sentenced by Turkish courts. The doctrine on the exclusive jurisdiction of the flag state does not, however, depend in its present form on the fiction that a ship is an extension of the flag-state’s territory. Rather, there is simply the need that ship be under the protective mantle of and subject to the legal domain of one state that docs not change even if the ship should constantly on the move, and it is with the flag-state that the ship has continuing connection. The holding then in Cunnard S.S. Co. v. Mellon 202 U.S. 100, 123 (1923) and Lam Maw v. Nagle 24 F.2d 316 (1928) should be expected: a person born on board a U.S. ship not born on U.S. territory and is therefore not a U.S. citizen.108 Peace on Earth: Issues in Public International Law The freedom of the sea cannot be invoked by a vessel that does not fly any flag, for Article 10, 1 of UNCLOS provides that such a vessel may be boarded by a warship or by a government vessel at any time. Vessels engaged in piracy, in slavery and in the tariff of narcotics may likewise not fend off inspection and legal action because of the freedom of the high seas. The interest of the international community out of these evils is safeguard by a appropriate treaty provisions. Aside from the freedom to navigate the freedom of the high seas is also includes the freedom to harvest the resources of the high-scas as long as this endeavor does not in any way hinder others from a similar freedom. This freedom is now qualified by the regime of the Exclusive Economic Zone (EEZ) and of the continental shelf. B. The Baseline and the Determination of Territory In regard to the irregular, highly indented coastline of Nor- way, the International Court of Justice in 1951 already had occasion to enunciate the lineaments for what would later be enshrined in the UNCLOS as the archipelagic doctrine. In United Kingdom v. Norway, 1951 ICJ 116 the court ruled: Considering that the coast of Norway constitutes with the skjaergaard which is highly irregular and very broken the relevant low-water mark should be that of the skjaer- gaard. There is nothing in international law that prohibits the drawing of the hase lines not only across bays as long as the straight lines do not depart considerably from the caast. Article 47 of UNCLOS now provides for straight base-lines drawn by connecting the outer-most points of the islands where a state is archipelagic. There is, however. a limit of 100 to 125 miles between the islands of an archipelago. That is to stay that when one island is beyond this limit it is not to be connectedthe Law of the Sea with an imaginary straight line to the rest of the archipelago but is to have its own territorial sea. This limit is obviously meant to prevent expanses of high-sea from being comprehended by archipelagic base-lines. It remains a fact, however, that because of the archipelagic doctrine stretches of sea that would otherwise be high-seas may now be well within the baselines. In consid- eration of this possibility, Article 49 provides that the waters land-ward of archipelagic base-lines shall be considered archi- pelagic waters over which there is a right to innocent passage over sea-lanes drawn by the state itself. It is this provision that gave trouble to the Philippine participants to the Convention. The Constitution, even in its present form, provides that “waters around between and connecting the islands of the archipelago regardless of the breadth and dimensions form part of the internal waters around and between islands may be archipelagic not internal waters of the Philippines.” (Article 1, Section 1) This is clearly dissonant with UNCLOS on two points: first, the waters around and between islands may be archipelagic not internal with the consequence that there is right of innocent passage through them which would not be the case if they were internal waters; second, there is a limit as to their breadth as we already noted above. In March 1987 the Philippine participants appended to the treaty the country’s “Declaration” which maintained that signing by our delegates was without prejudice to the claims we maintained under our constitution. Quite clearly, this meant that we would insists that the waters Jand- wards of archipelagic waters were internal. The USSR ~ which still existed at that time — registered what to my mind was a valid objection: the Philippine Declaration was in effect an attempt to contravene the very purpose and intent of UNCLOS and was therefore, by the law of treaties, a nullity. As Bernas insightfully reminds us, the definition of Philippine territory cannot be a matter of consent and acquiescence in the territorial community.110 Peace on Barth: Issues in Public International Law Baselines are important because it is from them that we measure the breadth of the territorial sea, the continuous zone and the exclusive economic zone. In keeping with the provisions of UNCLOS President Cory Aquino signed Executive Order No. 473 that provided for sea-lanes particularly for Taiwanese vessels. This order has become controversial — and not always for the right reasons. Some who should know better complain that no sea-lanes should ever have been determined at all. This is of course sheer nonsense, because UNCLOS makes us define our sca-lanes else vessels in innocent passage may make use of traditionally used lanes. Whether or not the designated band is the most opportune or propitious is, of course a debatable issue. Tt is to this issue that we shall now direct attention. Executive Order No. 473 and Its Accompanying Agreement. The archipelagic doctrine, with its concomitant method of drawing base-lines is now part of the Law of the Sea despite objection from the Unites States. Under the archipelagic doc- trine a new legal category of waters is established: archipelagic waters. A new order of things gives rise to new categorizations. This is axiomatic in the life of the law, and while the simpler division between “inland waters” and “high seas” would have been less unwieldy the benefits of the archipelagic doctrine more than justify the admission of a new category which though definitely not facile is neither as complex as some people make it to be. Put briefly, the doctrine defines an archipelagic state as a state whose territory consists wholly of one or more archipela- goes and must not possess any continental mainland territory. It allows such a state to draw straight archipelagic baselines joining the outermost points of the outermost islands and to sure is territorial sea from these baselines. (cf. Sohn and Gustafson, The Law of the Sea 56).The Law of the Sea (ll We will therefore start with the very important proposition that archipelagic waters are not inland waters and cannot be treated as such. Quite to the point then, it is asserted: Totally new in the U.N. Convention is the provision made by Article 47 fro the drawing of the straight archi- pelagic baselines. The drawing of such baselines, limited in length to 100 to 125 miles between the islands of an archipelago, obviously susceptible of enclosing vast areas of waters previously consid- ered as high seas and used for international navigation, Article 49 stipulates for them a new status, archipelagic waters over which the archipelagic state has sovereignty except for the regime of sea lanes. Sweeney, et. al., The International Legal System, 192 It is true that when the Philippines ratified the governing convention on the Law of the Sea it attempted — in true Filipino fashion (i.e. having a cake and eating it too) — to assert that “the provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair the sovereignty of the Philip- pines as an archipelagic state over the sea lanes and do not deprived it of authority to enact legislation to protect its sover- eignty, independence and security.” (cited in Sweeney 193) The perceptive delegates of what was then the Soviet Union inter- posed an objection which — despite the demands of patriotism — I must nevertheless side with as being perfectly in order. They refused to recognize any legal vitality in regard to the Philippine “Declaration” since it contravened an important treaty condition: that declarations could not be made that had the effect of nullify- ing the purposes of the convention one of which quite obviously was to respect the regime of archipelagic waters. Under its municipal law, then the Philippines may attempt to regulate passage through archipelagic waters but in interna-112 Peace on Earth: Issues in Public International Law tional disputes, it is international law that prevails, particularly when there is an explicit governing convention. Nowhere in its “Declaration”, however, do I read a reservation by the Philip- pines in regard to the rule on sea-lanes. Article 53(1) states the law on sea-lanes: An archipelagic State may designate sealanes and air routs thereabove, suitable for the continuous and expedi- tious passage of foreign ships and aircraft through or over its acrhipelagic waters and the adjacent territorial sea. The permissive pharaseology does not mean that the archi- pelagic state may refuse to designate sea-lanes thereby effec- tively barring innocent passage. Article 52 (1) the preceding provision reads: Subject to Article 53 and without prejudice to Article 50, ships of all states may enjoy the right of innocent pas- sage through archiperlagic waters in Section 3 of Part Il. Innocent passage through archipelagic waters in then an in- ternational right of all foreign ships, subject however, to the exercise by the archipelagic State of sovereignty when it desig- nates sea-lancs. The Convention on the Territorial Sea and the Contiguous Zone (£958) defines innocent passage under Article 14, Sub-section A Section III. Innocent passage includes naviga- tion for the purpose cither of traversing without entering internal waters or of proceeding to internal waters. Included too are stopping and anchoring which are incidental to ordinary naviga- tion or is rendered necessary by force majeure. The Convention is fact, has a “catchall” provision that accepts as “innocent” passage that is not prejudicial to the peace good order or security of the coastal State. (in 6-B Benedict on Admiralty 7" Ed. Doc. 10-3)The Law of the Sea 113 If an archipelagic state does not designate sea lanes, the right of archipelagic sea lanes passage may be exer- cised through the routes normally used for international navigation. Sohn and Gustafson, 110-111 Clearly then, under international law the Philippines cannot treat the waters between the Batanes group of islands and Aparri as “inland waters” but as “archipclagic waters” and the provi- sions of the Law of the Sea, as well as the rights enjoyed by foreign ships in regard to archipelagic waters must be sustained. By Executive Order No. 473 the sea-lanes were established. By the same act then the Philippines exercised its option to designate seal lanes under the prevailing Law of the Sea. It is equally clear, however, that accommodating as the Executive Order may have been towards the Taiwanese in view of the “Agreement” between the Philippines and Taiwan earlier arrived at the sea lanes so designated cannot be exclusively for Taiwan- ese. Article 53(1) makes innocent passage through archipelagic waters the right of the ships of all states. It will be noted that the “sea lanes” provided for in the Agreement on Sea Lane Passage and Memorandum on Agriculture and Fisheries Cooperation between the Philippines and Taiwan and those defined in the Executive Order are exactly the sane. In opening a sea-lane to the gift-bearing Taiwanese a sea- lane for all foreign ships has also been opened. This is the inevitable legal consequence of the Executive Order. Party B in the “Agreement” is the Republic of the Philip- pines. Part A is supposed to be the government of the “Republic of China.” In so entering into such agreement however, we have tacitly recognized the “Republic of China” — or have we not? Orthodoxy holds that when X and Y conclude treaties with each other implied is the recognition each makes of the statehood of the other. If we have, there is no escaping the conclusion that114 Peace on Earth: Issues in Public International Law ours is a Two-China policy and then we must put up with the protests of Beijing — which I personally do not mind considering that, until lately, economically the Taiwanese have been more helpful than Beijing. On the other hand, if we insist that despite the agreement we have not recognized the “Republic of China” then we are not in the unfortunate situation of not knowing exactly the status of the party we have contracted with? The solution to these problems is not, as many shortsight- edly suggest to repeal the Executive Order but to clarify ambi- guitics by subsequent legislative enactment or administrative issuance. The regime of the sea-lanes is not optional to Philip- pine municipal law. It is incumbent upon us under the aegis of the new law of the sea. The Corfu Channel Case (United Kingdom v. Albania) 1949 1.C.J. Rep. 428 enunciates some useful principles relative to liabilities of a State towards other states for damage inflicted within such a State’s territorial waters. Facts A squadron of British ships left the Port of Corfu and started navigating through a channel in the Strait of North Corfu (in Albanian territorial waters) when two of the British hit mines and were damaged. Issues 1. What liabilities, if any, accrue to Albania and what damages is she responsible for in terms of loss of life and destruction? 2. Did the United Kingdom violate international Law by navigating through Albanian territorial waters without first having secured Albanian consent?The Law of the Sea 115 Holding 1. Albania is responsible for damages and for the loss of life. 2. The United Kingdom was not in violation of interna- tional law by navigating through Albanian territorial waters. Ration decidendi 1. A state on whose territory or in whose waters an act contrary to international law occurred may be called upon to give an explanation. Albania had an obligation to warn vessels about existence of a minefield in its territorial waters. This obligation rests on elementary considerations of humanity as well as on the principle of the freedom of maritime communica- tion. A more important ground however is the obligation of every State not to allow its territory to be used for acts contrary to rights of other States. 2. In time of peace, states have a right to send their water ships through straits used for international navigation between two parts of the high seas without the previous authorization of a coastal state, provided that the passage is innocent. That the Strait of Corfu is a highway for international navigation is a legal conclusion from the fact that it constitutes a frontier between Albania about Greece and that a part of its is wholly within the territorial waters of these states. The latter particularity of this case ~ the geographical and political status of the Strait of Corfu — may now allow this case to be decisive in other cases relating to the right of warships to navigate in territorial waters without permission or clearance of the coastal state.116 Peace on Earth: Issues in Public International Law The Territorial Sea It is not true ~ as is commonly believed — that the new law of the sea determines the breadth of the territorial sea to be twelve nautical miles. What the present law provides is that the states may determine the breadth of their territorial waters, provided these do not exceed twelve nautical miles. (Article 3) There is a right of innocent passage through territorial waters, but some international lawyers do ask whether or not it is in fact the case that by their nature, some vessels — such as nuclear- powered vessels — can never be in innocent passage. Because the territorial waters of the state are safeguarded by Article 21 the rights among them: the authority of the State to adopt laws and regulations relative to the safety of navigation and the regulation of matitime traffic, the conservation of the living resources of the sea, the prevention of infringement of customs, fiscal, immigration or sanitary laws and regulations. Furthermore, without spelling out in detail what it may do — consequently leaving the coastal state a considerable latitude of action — Article 25(1) guarantees the coastal state the right to take “the necessary steps in its international sea to prevent passage which is not innocent.” When a foreign vessel has entered the territorial waters of a state, it becomes subject to the criminal jurisdiction of the coastal state. UNCLOS 82 does not detract from this jurisdic- tion, Article 27, however, prescribes that such jurisdiction should not be exercised in regard to crimes committed on board foreign vessels unless the consequences of the crime extend to the Coastal State, or if the crime is of a kind to disturb the peace of the country to the good order of the territorial sea or if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag state or if such measures are necessary for the suppres- sion of illicit traffic in narcotic drugs or psychotropic sub- stances.The Law of the Sea 117 C. The Contiguous Zone The regime of contiguous zone complicates the rather sim- plistic division between territorial waters over which the coastal State has unquestioned sovereign authority and the high seas through which there is freedom of navigation. The provisions of the contiguous zone however, are not without historical prece- dent. States have proclaimed the zone adjacent to the territorial sea as an area over which State exercises certain rights. In this regard, the contiguous zone, though actually a portion of the “high seas” is sui generis in that over it, the State exercises certain rights relative to certain matters. Recognition of the claims of states over this strip of sea adjacent to the territorial waters is actually then a concession to the practice of states that have habitually exercised some form of jurisdiction beyond the limits of what they themselves proclaim to be the extent of their territorial waters. The Hovering Acts of Great Britain from the 18" to the 19" centuries asserted fiscal and control over vessels navigating towards British ports at a distance of 12 miles from the coast — at that time still well within the “high seas.” Italy in 1940 instituted a zone of fiscal vigilance over the same breadth of sea. Article 24, paragraph | and 2 lay down the regime under the Geneva Convention (that preceded UNCLOS but was unable to fix the breadth of the territorial sea): In a zone of the high sea contiguous to the territorial waters, a coastal state may exercise the control necessary: first, to prevent the violation of its cus- toms, fiscal, sanitary and immigration Jaws on its territory or territorial sea; second, to punish the violations of these laws committed on its territory or in the territorial sca. No state may do more than what the law allows it to do: What is allowed in this zone are undertakings to prevent and to punish violations of specified laws on land territory or on the territorial sea. UNCLOS 82 maintains the legal regime of the contiguous zone in Article 33, but assigns its breadth at 24 miles from the118 Peace on Earth: Issues in Public International Law baseline. When a vessel drops anchor in the contiguous zone in order to trade in contraband, even though the violation occurs on what is strictly “high seas” the violation nevertheless infringes on the territorial sovereignty of the state and may thus be effectively dealt with by the coastal state. I go so far as to maintain that the coastal state may even punish the offender for the crime I not only committed on that band of sea just outside territorial waters but reaches to the coast of the state. Almost universally accepted as a qualification to the free- dom of the seas is the doctrine of hot pursuit. In Re: Pulos, et al., Tribunal of Naples, 1976, 3 Italian Yearbook of Interna- tional Law, 282 (1977) the traditional doctrine found expression: The freedom of the high seas is subject to certain limitations recognized by customary international law: the rights of the state to suppress smuggling by taking necessary measures even on the high seas. The rule is now codified as Article 111 of UNCLOS. To be justified the pursuit must be directed at a vessel believed to have violated the laws and the regulations of the state. The pursuit must commence when the vessel is within the internal waters, the archipelagic waters, the territorial sea or the contiguous zone pursuing state. In other words, pursuit outside the territorial sea and the contiguous zone must only be in continuance of pursuit already commenced, Only warships, military aircraft may engage in hot pursuit which must cease the moment the vessel pursued enters the territorial sea of its own state or that of a third state, D. The Exclusive Economic Zone Like the contiguous zone, the exclusive economic zone has a historical antecedent specifically in the fisheries zone. Techno- logical advances that have allowed coastal states to harvest the riches of the sea farther away from the coast, as well as incur- sions by foreign vessels into these same newly-found fishingThe Law of the Sea I? grounds spurred the laborious development of the law on the exclusive economic zone. The Treaty of Geneva (1958) rejected the unilateral claims of States to sovereign rights over the portions of the high seas. It did recognize, however, the special interest of the coastal state in maintaining the productivity of biological resources situated in “a part of the high seas adjacent to its territorial sea.” There was, as yet, no delimitation of this “adjacent area.” Article 57 of UNCLOS allows state to determine the breadth of the zone, provided that this does not extend beyond 200 nautical miles from the baselines of the State Over this zone of sea, also called the patrimonial sea the rights of the coastal state over the EEZ are referred to as “sovereign rights” (Article 56, 1 a) The sovereign rights cover the exploration, exploitation, conservation and management of the natural resources, whether living or non-living and these are resources whether of the superjacent waters, the sea-bed or the subsoil. The sovereign rights also extend to the production of energy from water, currents and wind. Although no longer characterized as “‘sover- eign rights” the provisions also recognize the jurisdiction of the State in regard to the establishment and use of artificial islands, installations and structures, marine scientific research, the protection and the preservation of the marine environment. Significantly, the UNCLOS promotes the optimization of the resources of the EEZ so that when the coastal state is not able to exploit the resources of the area, it may, by appropriate agree- ments, allow other state to do so. E. The Continental Shelf Even before the UNCLOS 82 came into force, there al- ready existed a law on the continental shelf. In fact many of the treaty-provisions may be apposible against all states insofar as they enunciate customary law on the continental shelf illustrates the now commonly-held view of most authors on international120 Peace on Earth; Iysues in Public International Law law that it is not essential to customary law that it evolve over a long period of time. Several factors explain this rapid develop- ment among them: scientific and technological progress of the last decades that have made it possible to mine the riches of the sea-bed and prognostications about future shortages of essential resources that have driven States and farther off-shore in search of them, The continental shelf consists of the soil and the subsoil of the high-seas in some geographically definable and verifiable manner forming part of the land-mass of a coastal State. Article 76 of UNCLOS is a definition: The continental shelf of a coastal State comprises the sea- bed and subsoil of the submarine arca that extend beyond its 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 breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance. It is clear to me that the regime of the continental shelf con- stitutes a derogation from commonage or whether the freedom of the high seas traditionally did not include freedom of the soil or the subsoil thereof. The difference is important, for where we deal merely with derogation, then States exercise the sover- eignty over the continental shelf only by suffrage of other States and as consequence the exercise of such right is to be governed strictissime juris. On the other hand, advocates of the law on the continental shelf maintain a “natural” claim that the coastal States have over it since the continental shelf does constitute the submarine continuation of a State’s land-mass, By now it should be clear that one of the governing values of UNCLOS is the optimization of marine resources, and the coastal State is being the most appropriate power to explore, exploit, manage and develop the resources of the shelf because it is in the best position to exercise effective control. Rather than invite anThe Law of the Sea 121 anarchic scramble for the resources of the continental shelf by treating it as “free game” or res nullius, UNCLOS has estab- lished a system for the rational, orderly and peaceful control and management of this submarine area. Article 77,1 recognizes the sovereign rights of coastal States over the continental shelf for purposes of exploring and exploiting its natural resources. Paragraph 4 of the same article defines these “natural resources”: a) mineral and other non-living resources of the seabed and subsoil; b) __ living organisms belonging to the sedentary species, ie. organism which at the harvestable stage either are immobile on or under te sea-bed or are unable to move except in constant physical contact with the sea-bed or the subsoil. Considering the gifts of the sea, whether living or non- living to be the common heritage of mankind, the law on the continental shelf does provide that where the shelf does extend beyond 200 nautical miles (the breath of the Exclusive Eco- nomic Zone), the exploiting State afier the fifth year of produc- tion shall contribute 1 percent of the value or volume of produc- tion at the site (beyond 200 nautical miles) on the sixth year and 1 percent more therafter until the ceiling of 7 percent shall have been reached which shall be the contribution thereafter made to the Authority established under the Convention. Contributions made under this scheme will be equitably shared by the least- developed and Jand-rocked developing states. (Article 82) That UNCLOS makes such provision for States otherwise disadvan- taged certainly marks the new law the sea as worthy legacy of our generation.