106 Peace on Earth: Issues in Public Inte onal Law the Unites States did not conform with the relevant provisions of the General Agreement, and recommended that the Dispute Settlement Body request the Unites States to bring its federal regulations into conformity with its obligations under the GATT. The maiden decision also sheds light on procedural matters relative to appeal: The aggrieved State notifics the Dispute Settlement Body of its decision to appeal conclusions of the Panel Report. Simultaneously Notice of Appeal is filed with the Appellate Body. The appellant files its submission and then so do the appelices and if there should be any third participants ‘The appellate body listens to oral arguments and questions put to the counsels or agent of the parties may be answered cither orally or in writing Chapter 7 THE LAW OF THE SEA A. Freedom of the Seas A on high seas enjoys the freedom to navigate. This is along-standing principle of the law of the sea. The United ‘Nations Conversion 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 Lows, PCI 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 flay 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 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 Cunard 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. tervitory and is therefore not a U.S. citizen. 107108 Peace on Barth: Issues in Public International La 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-seas 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 UNCL.OS as the archipelagie doctrine. In United Kingdom v. Norway, 1951 ICV 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 base lines not only across bays as long as the siraight lines do not depart considerably from the coast. 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 109 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. Itis 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 intemal 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 mainiained under our constitution. Quite clearly, this meant that we would insists that the waters land- 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 canmot be @ matter of consent and acquiescence in the territorial community.110 Peace on lath: Issues 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 comp! that no sea-lanes should ever have been determined at all. This is of course sheer nonsense, because UNCLOS makes us define our sea-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 It is to this issue that we shall now direct attention. Executive Ordet 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, 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 und 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 l ‘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 proviston made by Article 47 fro the drawing of the straight arch 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- ceted as high seas and used for international navigation, Article 49 stipulates for them a new status, archipelagie 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 (ie. 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 archipelagie state over the sea lanes and do not deprived it of authority to enact legislation to protect its sover- ciguty, 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-412 Peace on Earth: Issues in Public International 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 Jaw 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 pharascology does not mean that the archi- Pelagic state may refuse to designate sca-lanes thereby effec tively bazring innocent passage. Article 52 (1) the preceding provision reads: iubject to Article 53 and without prejudice to Article 50, ships of all states may enjoy the right of innocem pas- sage through archiperlagie waters in Section 3 of Part Il Innocent passage through archipelagic waters in then an in- ternational right of all forcign ships, subject however, to the exercise by the archipelagic State of sovereignty when it desig- nates sea-lanes. The Convention on the Territorial Sea and the Contiguous Zone (1958) defines innocent passage under Article 14, Sub-section A Section III. Innocent passage includes naviga- tion for the purpose either of traversing without entering intemal 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 et 7 coastal State. (in 6-B Benedict on Admiralty 7" Ed. Doc. Ian 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 “archipelagic 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4 Peace on Earth: Issues in Public International Lanw. 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? he solution fo these problems is not, as many shortsight- edly suggest to repeal the Executive Order but to clarify ambi- guities by subsequent legislative enactment or administrative issuance, The regime of the sea-lancs is not optional to Philip- pine municipal law. It is incumbent upon us under the aegis of the new law of the sea. ‘The Corfir Channel Case (United Kingdom v. Albania) 1949 LC.J. Rep. 428 enunciates some useful principles relative bilities 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 1 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 intemational Law by navigating through Albanian territorial waters without first having secured Albanian consent? of the Sea 7 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 intemational law occurred may be called upon to give an explanation. Albania had an obligation to wam 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 {wo 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 intemational navigation is a Jegel 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 eases 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 Internationa Lan ‘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 intemational lawyers do ask whether or not itis 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, wt sanitary laws and regulations. Furthermore, ig 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 intemational 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 sca 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 1 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 ceriain 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 1920 instituted a zone of fiscal vigilance over the same breadth of sea. Article 24, paragraph 1 and 2 lay down the regime under the Geneva Convention (that preceded UNCLOS but was unable {o 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 sea, 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 hnernaational Lavw 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- nal Law, 282 (1977) the traditional doctrine found expression: 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 sca 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. 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 coasial states to harvest the tiches 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 9 grounds spurred the laborions 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 tc its territorial sea.” There was, as yet, no delimitation of this “adjacent area.” Article 37 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, 1a) 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 sca-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: Issues in Public Intern nul Leow 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 area that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, ot to 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. ILis clear to me that the regime of the continental shelf con- stitutes a derogation from conmonage 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 sirictissime 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 tion 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 Th yw of the Sea 2 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, i.e. organism which at the harvestable stage cither 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 after the fifth year of produc- tion shall contribute I percent of the value or volume of produc- tion at the site (beyond 200 nautical miles) on the sixth year and 1 percent more therafler 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 land-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,Chapter 9 OUR KALAYAAN CLAIM: REVIEW- ING THE LEGAL PRINCIPLES ‘an Brownlie identified, correctly to my mind the antecedents to the present Kalayaan tow and similar disputes when he wrote -read treatise, Public International Law. ‘The pressures of national sentiment, new forms of mn of barren and inaccessible areas, the strategic significance of areas previously neglected, and the pr of population on resources give good cause for the belief that territorial disputes will increase in significance. And we thought that with the end of the coloni period, for some would blissfully cease! and colo- me now, quarrels over who owns what What is the law on international claims to territory? The chapter attempts a contribution towards an answer. I shall therefore prescind form an exami es of fact and concentrate on the legal factors. tapped. That regime then wi that contributes to the optimal use, for the benefit of earth's resources. 140 Reviewing the Legal Principles 141 ‘A parallel sentiment is to found in what today may seem to be the officious act by which Alexander VI “divided” the world ~ in the Brief Inter Caetera ~ between Portugal and Spain: the optimal use of the missionary resources of the two great powers fro the proclamation of the gospel to the heathen. Because of the premium the international lege! order places in the best use of resources, proximity alone is not a good argument to support a territorial claim. It then does not much pine cause to insist that some of the islands of the Exclusive Zone of the Republic of the Philippines. In fact, such an attempt at an argument begs the question: if such islands are not part of the ine territory, then the extent of our EEZ is perforce to be a (or the capabil- not consonant with the intema- order’s underlying values of optimal use. In the case of a nullius, however, the more proximate a state-elite, the guarantee that world abs that the resources latent in the term clam when what is in issue is the extent of territorial appurte- nance. When we deal witi a wildemess, a desert or a generally ely controlled, Proximate or contiguous territory will be deemed part of one’s territory. This general al law serves two purposes and values: mizes disputes, second, employment of resources. It shou! resources can best be hamessed when it is clear who has the right to do so. Internat rdly anything more than symbolic annexa of our planet are too scarce and too precious to be thus trivial-142 Peace on Earth: Issues in Public International Leow zed. On the other hand, the demand for conerete state activity in regard to the occupation of territory that is the subject of the claim cannot be pushed too far without fostering that aggres- siveness of claimant-states that constitutes a thteat to world peace! The Rules of ti International Legal Order Effective occupation is to international law what possession is for private law. It is that criterion by which international law settles disputes are regatds claims to territorial resources. Land, however, is variedly occupied and too much of the land disputed has been by and large uninhabited. That one Filipino aboard ship, while sighting the islands now the object of the contro- versy, in a moment of nationalist fervor, proclaimed Phi sovereignty over them does not really settle the docs not by any means speak of any rest with my regard of Mr. Coloma. Quite reasonably, international law demands indicators of state activity, for not even the most dramatic and prominent acts of enthusiasm of private citizens can never make up for state inactivity. To be sure, acts of citizens acting in theit private capacities are not totally futile, but to support any claim, such Private acts must be ratified by the State. Effective occupation calls for actual settlement without which title remains inchoate. For purposes of international law — and for whatever it may be worth ~ title that is inchoate is the beginning of a claim that can mature into one that is consolidated and recognized. While some jurists do not find the notion of inchoate title helpful, Shaw suggests that what it does is to put other States on notice that the Claimant State has prior interest in the territory which, within a certain period must be supplemented by acts of effective occu- pation. Effective occupation involves “incorporation into the ad- ministrative and criminal system” of a State, leading finally to continuous settlement. The 1919 Corivention of St. German-en- Ow Kalayaan Claim: Reviewing the Legal Principles 143 Laye laid down some duties of a claimant under effective occupation. The claimant state had to maintain authority and police force. It had to be able to ensure protection authority of persons and of property. When necessary, it had to guarantee freedom of trade and of transit. The requirements of occupation are classically enumerated as: open, the global community must have notice of a claim so that there can be corresponding recognition thereof; exclusive, because this is the essence of a claim; continuous in such wise as to allow a conclusion that there is intention to possess; with claim t0 territorial sovereignty, for there are forms of occupa- tion that are continuous open and exclusive that nevertheless do not involve a claim of ttl. It will not be too difficult to concede however that the re- quirements of effective occupation cannot be invariable, consid- ering that land resources are found in different degrees of occupation and availability. Where the land is capable of sus- taining a wide variety of activity, nothing less than full settle- ‘ments will suffice, As with the Spratlyes, however, land may not be conducive to a continuous settlement but may have resources that can be exploited by trade. In such case, a claimant state like the Philippines will have to prove that insofar as the disputed islands are concerned the State has protected and is capable of protecting existing rights and that trade and commerce, undet the aegis of State, can be carried out. Has the Philippines ever enacted legislation in regard to the disputed territory? Have local government units ever been eslablished? Are these scientific or commercial expeditious that can be identified as having been supported or sanctioned by the State? Prior to the flurry of claim, counter-claim and dispute, did the Philippines ever conduct inspection tours of the disputed territory? An affirmative answer to at least some of these questions would greatly enbance the Philippine claim since they ‘would establish what, in law, is known as the animus possidendi144 Peace on Earth: Issues in Public International Law ~ the intention to possess or to hold as one’s own, To succeed a claim to territory must then establish that the Claimant State acted towards the territory with the intent to posses (animus possidendi) and did effectively occupy the territory. 1 must return to a point hinted above. In respect to claims, \e writers refer to as critical dates are truly critical critical in regard to the Philippine claim over the contested islands is the date of the first public Chinese (or another State-clite’s) claim. Another critical date may be the sighting of the islands by Coloma and the recordations made at the time, insofar as it relevant to international law to dete ‘mine whether or not the Philippine after such a date took steps to perfect its title over the disputed islands. Another critical date relative to the Philippine claim is that of the first occupation of the islands e.g., when the first naval contingent was sent, when civil administration was extended to the islands, when the designation of the election precincts included the islands, ete. The absence of reasonable (and proportional) state activity alter all leads to loss of title although abandonment is never to be presumed in international law. what Loss of the title due to inactivity safeguards a value of the intemational community: that the scarce resources of the earth be optionally tapped. It should not be overlooked though that insofar as generally uninhabited islands or sparsely populated territory is concerned, Little is required for a conclusion of effective occupation to lie, There is n such as a requirement of notice. Since intema- tional law, however, exists by virtue of the consensus of States, recognition by the global community of one's claim is at the heart of the matter, and there can be no recognition of what is occult. While there is then no formal requirement of recordation, nor is there a format prescribed for the staking out of claims, a public claim or act of possession evidences at least, the animus to possess. Our Kalayaan Claim: Reviewing the Legal Principles las Other relevant questions are: Did the Philippines, in draw- ing its maps of maritime and jurisdictional purposes, ever include the disputed islands? In the administrative distribution of disiriets or regions, were the islands included? Have there been official development plans including the islands? Am affirma- tive answer to these questions would evidence State activity supportive of a claim to title. Questions such as these were found relevant by the Permanent Court of International Justice in deciding conflicting claims between Denmark and Norway cover Eastern Greenland. Leading Cases It is elementary to international law that there is no such thing as precedent. It still remains a good rule of reason, how- ever, that similars are dealt with similarly, and that like cases are solved! in like manner. I think we can all expect intemational courts to decide with a fair degree of consistency, for that is ‘what seems to be at the heart of justice In the Island of Palmas (US. v. The Netherlands) case, 2 U,N. Rep. Intl. Arb, Awards 829 (1928), the Arbiter ruled that it ‘was not necessary in the case of a small distant and sparsely populated island, that the display of authority by a claimant State should go back to a very far period. Display authority has to go back at least as far as the time that a conflicting claim made by another State is made and long enough for other parties to be on notice as to the true state of affairs. Put it in simple terms, display of authority over the contested island must be Jong enough as to enable the world community to determine who really has it! [t is also this case that explains what a title by prescription is, When there is “continuous and peaceful exercise of the State authority” that is “open public” prescription may be effectively invoked. Giuliano, Scovazzi and Treves (Diritto Internazionale) opine that prescription is actually the preference146 Peace on Earth: in Public International of international law that s state of affairs that has existed for along time be left undisturbed. The Clipperton Island Case (France v, Mexico), 26 Am. J. Int. Law 390 (1932) disapproved of drawing judicial conclusion 28 to ownership form a historical allegation of discovery. The decision in this case reiterated the classical doctrine that for a claim of ownership to prosper there must be coupling of the subjective element of the intent to possess (roundly criticized by Ross as a phantom) and the actual fact of taking possession, The decision, however, does acknowledge that taking possession happens in different degrees according to the concrete circum- stances of the territory claimed. In the Eastern Greenland case (Denmark v. Norway), 1933 PCI Ser A/B No. 53, the Permanent Court of International Justice ruled that the intention and the will to act as sovereign coupled with the actual exercise or display af snch authority are the elements of a claim based on continual law is willing 10 decide 2 claim also on the basis of the relative weakness of a competitor's claim of title. In such case, the tribunal will accept minimum in the actual exercise of sovereign authority over the disputed territory if the contender’s title is poorer or his claim, weaker. Conclusion ‘We have not yet resolved the issue of the Philippine claim to the Kalayaan and neighboring islands. It was not our inten- tion to do so. There are, furthermore, too many bits and pieces of the factual puzzle that are missing before the appropriate law or principle either of customary international law or treaty law can be invoked. I think, though, that we have gone through the important step of examining the principles involved, thus enabling us to take stock of our legal armaments ~ and examin- ing our options in the light of such an assessment. Chapter 10 International Law and International Legal Processes THE LAW ON EXTRADITION Territorial sovereignty and the Need to Prosecute Offenders atliet, {called attention to “sovereignty” used particularly in | share Jaw as one of those nebulous concepts that sound grandiose, are used to lend gravity to a plethora of varying claims that however sadly lack specificity and determinateness. It is a term of pompousness with which one covers a multitude of sins of vagueness and equivocation. Whatever its “original sin” might be, however, “sover~ ceignty” remains an operative term in the law of nations. It is the basis of the win doctrines of “act of state” and “sovereign immunity". When applied to the territory of a state, it announces the claim that any intrusion into a State's authority without its consent or acquiescence constitute a violation of a basie precept of international law. It also means that within its territory, the State’s authority is supreme, at least opposed to the influence of other state. Lately, however, the argument that the obligations of a State under international law ~ particularly as regards keeping world peace and respecting basic human rights — cannot be 147