HULIPAS, JAMIAH O.

JURIS DOCTOR II PUBLIC INTERNATIONAL LAW

LECTURE NO. 1
TERRITORY IN INTERNATIONAL LAW & THE PH TERRITORY
TERRITORY
 the fixed and permanent portion on the earth’s surface inhabited by the
people of the state and over which it has supreme authority
 consists of the portion of the surface of the globe on which that State
settles and over which it has supreme authority
 an exercise of sovereignty, covering not only land, but also the
atmosphere as well

CHARACTERISTICS
 Permanent
 Definite/Indicated with Precision
 Generally, the territory’s limits define the State’s jurisdiction
 Big enough to sustain the population
 Not so extensive as to be difficult to:
 Administer; and
 Defend from external aggression

TERRITORIAL SOVEREIGNTY
 A nation-state normally exercises, subject to the limitations imposed by
international law, the competence to prescribe and apply law to persons,
things and events within its territorial domain to the exclusion of other
states
 In principle, the boundary of state’s territory define the reach of its
authority
 It does not only include authority over land masses but extends to all rivers
and lakes within its territory and its internal waters and territorial sea

MODES OF ACQUISITION OF TERRITORY

 By Original Title
 Discovery and Occupation
 Accretion
 By Derivative Title
 Prescription
 Cession
 Conquest/Subjugation
 Other Modes
 Dereliction/Abandonment
 Erosion
 Revolution
 Natural Causes

DISCOVERY AND OCCUPATION

 An original mode of acquisition of territory deemed to be unoccupied or
uninhabited – “terra nullius”
 land to be acquired must be terra nullius
 Property not owned by any person (res nullius) is subject to appropriation
by occupation
 Requires the intent to assert ownership (animus) and manifestation of
physical control (factum)

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HULIPAS, JAMIAH O.
JURIS DOCTOR II PUBLIC INTERNATIONAL LAW

DOCTRINE OF EFFECTIVE OCCUPATION

 The following MUST concur:
 Discovery/Possession (animus)
 Mere discovery gives only an Inchoate Right of Discovery
 Once the discovering state begins exercising sovereign rights over
the territory, the inchoate right ripens and is perfected into a full
title
 Effective Occupation (factum)
 Does not necessarily require continuous display of authority in
every part of the territory claimed

ACCRETION
 Results from the natural (slow) or artificial formation of land
 the increase in the land area of a State caused by the operation of the
forces of nature, or artificially, through human labor
 Examples:
 Reclamation projects in Manila Bay
 Polders of the Netherlands
 Accessio cedat principali (accessory follows the principal) is the rule
which, in general, governs all the forms of accretion.
 In contrast, avulsion – the sudden, unnatural shift in boundary matters –
does not change ownership.

PRESCRIPTION
 Acquisition of sovereignty over a territory through continuous and
undisturbed exercise of sovereignty over it during such a period
 derivative mode of acquisition by which territory belonging to 1 State is
transferred to the sovereignty of another State by reason of the adverse
and uninterrupted possession thereof by the latter for a sufficiently long
period of time
 A portmanteau concept that comprehends both a possession of which
the origin in unclear or disputed
 2 REQUISITES 1
 continuous and undisturbed possession
 lapse of a period of time
 No rule as to length of time required
 Question of fact
 Q: What is the source of this right?
 A: Roman principle of “usucapio” (long continued use of real
property ripened into ownership)
CESSION
 a derivative mode of acquisition by which territory belonging to 1 State is
transferred to the sovereignty of another State in accordance with an
agreement between them
 a bilateral agreement whereby one State transfers sovereignty over a
definite portion of territory to another State
 E.g. Treaty of cession (maybe an outcome of peaceful negotiations
[voluntary] or the result of war[forced])

CONQUEST

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JURIS DOCTOR II PUBLIC INTERNATIONAL LAW

 derivative mode of acquisition whereby the territory of 1 State is

conquered in the course of war and thereafter annexed to and placed
under the sovereignty of the conquering State
 the taking possession of hostile territory through military force in time of
war and by which the victorious belligerent compels the enemy to
surrender sovereignty of that territory thus occupied
 acquisition of territory by force of arms
 however, conquest alone merely gives an inchoate right; acquisition must
be completed by formal act of annexation
 no longer regarded as lawful
 UN Charter prohibits resort to threat or use of force against a State’s
territorial integrity or political independence

WHAT COMPRISES A TERRITORY?

 Terrestrial Domain (Land mass)
 The landmass where the people live
 Internal Waters
 These are bodies of water within the land boundaries of a State, or
are closely linked to its land domain, such that they are considered as
legally equivalent to national land
 Maritime and Fluvial Domain
 Zones of the Sea (TS, CZ, EEZ, & CS)
 Waters adjacent to the coasts of a State to a specified limit
 Aerial Domain
 the airspace above the territorial and maritime domains of the State,
to the limits of the atmosphere

THE PHILIPPINE TERRITORY

 Article I. National Territory
 The national territory comprises the Philippine archipelago, with all the
islands and waters embraced therein, and all other territories over
which the Philippines has sovereignty or jurisdiction, consisting of its
terrestrial, fluvial, and aerial domains, including its territorial sea, the
seabed, the subsoil, the insular shelves, and other submarine areas.
The waters around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions, form part of
the internal waters of the Philippines.
 The Philippine Archipelago is considered as a Single Territorial Entity
 Basis:
 Treaty of Paris - Between Spain and the U.S., signed in Paris on
December 10, 1898
 Treaty Between Spain and the U.S. for the Cession of Outlying Islands
of the Philippines, signed in Washington on November 7, 1900
 Convention Between the U.S. and Great Britain Delimiting the
Philippine Archipelago and the State of Borneo, signed in Washington
on January 2, 1930

TREATY OF PARIS
 transferred Philippine sovereignty from Spain to the U.S. upon payment of
twenty million dollars ($20,000,000) within three months after treaty
ratification

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JURIS DOCTOR II PUBLIC INTERNATIONAL LAW

 The boundaries of the Philippine archipelago defined in Article III of the

Treaty of Paris of 1898 did not include two small islands: Sibutu at the
extreme southwest of the Sulu group toward Borneo and Kagayan de
Sulu, lying northwest of Jolo and of some strategic value

THE CESSION TREATY OF 1900

 Spain relinquishes to the U.S. all title and claim of title, which she may
have had at the time of the conclusion of the Treaty of Paris, to any and
all islands belonging to the Philippine Archipelago, lying outside the lines
described in Article III of that Treaty and particularly to the islands of
Cagayan, Sulu and Sibutu and their dependencies, and agrees that all
such islands shall be comprehended in the cession of the Archipelago as
fully as if they had been included within those lines.

THE BOUNDARIES TREATY OF 1930

 clarifies those islands in the region belonging to U.S. and those to the
State of North Borneo and delimits the boundary between the Philippine
Archipelago (under U.S. sovereignty) and the State of North Borneo
(under British protection)
 solely focused on the status of the Turtle Islands and the Mangsee Islands
 sovereignty over these islands was transferred to the U.S.

TERRITORIES CLAIMED BY THE PHILIPPINES

 Spratlys Islands
 Sabah (North Borneo)
 Scarborough Shoal

THE SPRATLYS
 a disputed group of more than 750 reefs, islets, atolls, cays, and islands in
the South China Sea
 States staking claims to various islands are: Brunei, China (People's
Republic of China), Malaysia, the Philippines, Taiwan (Republic of China),
and Vietnam
 the Spratly area holds significant reserves of oil and natural gas, it is a
productive area for world fishing and commercial shipping, and coastal
countries would get an extended continental shelf

THE PHILIPPINE CLAIM OVER SPRATLYS

 The Philippines base their claims of sovereignty over the Spratlys on the
issues of Res nullius and geography
 no effective sovereignty over the islands until the 1930s when France
and then Japan acquired the islands
 When Japan renounced their sovereignty over the islands according
to the San Francisco Treaty, there was a relinquishment of the right to
the islands without any special beneficiary. Therefore, argue the
Philippines, the islands became Res nullius and available for
annexation
 In 1956, a private Filipino citizen, Tomas Cloma, unilaterally declared a
state on 53 features in the South China Sea, calling it "Freedomland“

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JURIS DOCTOR II PUBLIC INTERNATIONAL LAW

 On June 11, 1978, President Ferdinand Marcos of the Philippines issued

Presidential decree No. 1596, declaring the Spratly Islands (referred to
therein as the Kalayaan Island Group) as Philippine territory.
 On the basis of geography
 Kalayaan is distinct from other island groups in the South China Sea,
because of the size of the biggest island in the Kalayaan group
 all the islands claimed by the Philippines lie within its 200-mile Exclusive
Economic Zone according to the 1982 United Nations Convention on
the Law of the Sea (UNCLOS)
THE SABAH (NORTH BORNEO) DISPUTE
 the territorial dispute between Malaysia and the Philippines over much of
the eastern part of Sabah
 The Philippines, presenting itself as the successor state of the Sultanate of
Sulu, retains a "dormant claim" on Sabah on the basis that the territory
was only leased to the British North Borneo Company in 1878, with the
sovereignty of the Sultanate (and subsequently the Republic) over the
territory never having been relinquished.
 The Sultanate of Sulu was granted the northeastern part of the territory as
a prize for helping the Sultan of Brunei against his enemies and from then
on that part of Borneo was recognized as part of the Sultan of Sulu's
sovereignty.
 In 1878, the Sultanate leased such territory to the British North Borneo
Company
 The 1878 cession/rental payment was continued until the independence
and formation of the Malaysian federation in 1963
 As of 2004, the Malaysian Embassy to the Philippines had been paying
cession/rental money amounting to US$1,500 per year to the heirs of the
Sultanate of Sulu
 The Sultan of Sulu relinquished the sovereign rights over all his possessions
in favor of Spain, based on Bases of Peace and Capitulation signed by
Sultan of Sulu and Spain in Jolo on 22 July 1878
 In 1885, Spain relinquished all of its claim to Borneo to the United Kingdom
of Great Britain and Ireland in the Madrid Protocol of 1885
 In spite of that, in 1906 and 1920 the US, which by then colonized the
Philippines, formally reminded the UK that Sabah belonged not to them
but to the Sultanate of Sulu.
 America posited the claim on the premise that Spain never had
acquired sovereignty over North Borneo, and thus did not have the
right to transfer claims of sovereignty over North Borneo to UK in the
Madrid Protocol of 1885
 On 12 September 1962, the territory of North Borneo, and the full
sovereignty, title and dominion over it were ceded by then reigning
Sultan of Sulu, Muhammad Esmail E. Kiram I, to the Philippines.
 The cession effectively gave the Philippine government the full
authority to pursue their claim in international courts.
 To date, Malaysia continues to consistently reject Philippine calls to
resolve the matter of Sabah's jurisdiction to the International Court of
Justice.
 On February 11, 2013, a group of approximately 100–200 individuals, some
of them armed, arrived by boat in Lahad Datu, Sabah from Simunul island,
Tawi-Tawi of southern Philippines.

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HULIPAS, JAMIAH O.
JURIS DOCTOR II PUBLIC INTERNATIONAL LAW

 They were sent by Jamalul Kiram III, one of the claimants to the throne of
the Sultanate of Sulu.
 Their objective was to assert their unresolved territorial claim to North
Borneo.

SCARBOROUGH SHOAL
 Other names: Scarborough Reef, Huangyan Island, Bajo de Masinloc or
Panatag Shoal
 a group of islands, atolls, and reefs than a shoal, is located in the South
China Sea.
 The nearest landmass is Palauig town, Zambales province, Luzon Island, at
221 kilometers, about 123 miles west of Subic Bay.
 The Scarborough Shoal is not included within the territorial lines defined in
the Treaty of Paris (1898),The Cession Treaty(1900), The 1930 Boundary
Treaty, 1935 Constitution of the Philippines, Republic Act No. 3046 "Act to
Define the Baselines of the Territorial Sea of the Philippines"(1961), or the
1987 Constitution of the Philippines

PHILIPPINE CLAIM OVER THE SCARBOROUGH SHOAL

 the Philippine DFA has asserted that the country exercised both effective
occupation and effective jurisdiction over Bajo de Masinloc since its
independence
 erected flags in some islands and a lighthouse which it reported to
the International Maritime Organization
 It also asserts that the Philippine and US Naval Forces have used it as
impact range and that its DENR has conducted scientific,
topographic and marine studies in the shoal, while Filipino fishermen
regularly use it as fishing ground and have always considered it their
own
 The DFA also claims that the name Bajo de Masinloc itself identifies the
shoal as a particular political subdivision of the Philippine Province of
Zambales, known as Masinloc.
 It also asserts that there is no indication that the international community
has acquiesced to China's historical claim, and that the activity of fishing
of private Chinese individuals, claimed to be a traditional exercise among
these waters, does not constitute a sovereign act of the Chinese State.
 The Philippine government argues that since the legal basis of its claim is
based on the international law on acquisition of sovereignty, the EEZ
claim on the waters around Scarborough is different from the sovereignty
exercised by the Philippines in the shoal.
 The Philippine government has proposed taking the dispute to the ITLOS
as provided in UNCLOS, but the Chinese government has rejected this,
insisting on bilateral discussions
 Several official Philippine maps published by Spain and United States in
18th and 20th centuries show Scarborough Shoal as Philippine territory.
 The 2012 Scarborough Stand-off between PROC and RP has led the latter
to seriously consider upgrading its maritime patrol and areal
reconnaissance capability by acquiring Hamilton Class Cutters from the
U.S. and negotiating for purchase of 12 fighter jets from South Korea for its
small squadron

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HULIPAS, JAMIAH O.
JURIS DOCTOR II PUBLIC INTERNATIONAL LAW

LECTURE NO. 2
THE LAW OF THE SEA (UNCLOS)
THE LAW OF THE SEA
 Designed an ordered, economic, effective way for the peoples of the
world to most fully exploit the sea in their common interest
 Defines the rights and responsibilities of nations with respect to their use of
the world's oceans, establishing guidelines for businesses, the environment,
and the management of marine natural resources

UNCLOS
 replaces the older 'freedom of the seas' concept, dating from the 17th
century:
 national rights were limited to a specified belt of water extending
from a nation's coastlines, usually 3 nautical miles (5.6 km) (Three-mile
limit), developed by the Dutch jurist Cornelius van Bynkershoek
 To date, 3 UNCLOS’es were forged – 1956, 1960 & 1973

1982 UNCLOS-UNCLOS III

 The Convention, concluded in 1982, replaced the quad-treaty 1958
Convention on the High Seas.
 UNCLOS came into force in 1994, a year after Guyana became the 60th
nation to ratify the treaty.
 As of June 2016, 167 countries and the European Union have joined in the
Convention.

INTERNAL WATERS
 Waters on the landward side of the baseline by which the territorial sea is
measured (Art 8, UNCLOS)
 Includes lakes, rivers, canals, ports, bays and historic bays
 A coastal state has complete authority over its internal waters because it
adjoin the land territory
 In this zone:
 No ROIP exists for foreign vessels
 Coastal state may prescribe & apply its laws against foreign ships &
those on board

RIVERS
 National rivers
 Lie wholly within 1 State’s territorial domain– from source to mouth
 Belongs exclusively to that State
 Boundary Rivers
 Separates 2 Different States
 Belongs to both States:
 If river is navigable – the boundary line is the middle of the navigable
channel “thalweg”
 If the river is not navigable – the boundary line is the midchannel
 Multinational rivers
 Runs through several States
 Forms part of the territory of the States through which it passes
 EX.: Congo River, Mekong River
 International rivers

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JURIS DOCTOR II PUBLIC INTERNATIONAL LAW

 navigable from the open sea, and which separate or pass through
several States between their sources and mouths

LAKES AND LAND-LOCKED SEAS

 If entirely enclosed by territory of 1 state: Part of that State’s territory
 If surrounded by territories of several States: Part of the surrounding States

CANALS
 Artificially constructed waterways
 GR: Belongs to the State’s territory
 XPN: Important Inter-Oceanic Canals governed by Special Regime
 Example
 Suez Canal
 Panama Canal

HISTORIC WATERS/BAYS
 Waters considered internal only because of existence of a historic title,
otherwise, should not have that charater
 EX.: Bay of Cancale in France

TERRITORIAL SEA
 comprises in the marginal belt adjacent to the land area or the coast
and includes generally the bays, gulfs and straights which do not have
the character of historic waters (waters that are legally part of the internal
waters of the State)
 Measured seaward from the baseline delimiting the internal waters
 1982 UNCLOS provides the maximum limit of 12 nautical miles from the
baseline.
 Defined from the low-water mark around the coasts of the state
 This is the traditional principle under customary international law
 Reiterated in Art 3 of 1958 Geneva Convention on Territorial Sea &
Contiguous Zone
 This is the low water line of a low tide elevation

LOW TIDE ELEVATION

 a naturally formed area of land which is above water and surrounded by
water at low tide but submerged at high tide; it may be a mudflat or reef
 When a low tide elevation is situated in an overlapping area of the
territorial sea of 2 states, both are entitled to use this as part of low-water
line in measuring their respective territorial sea
 They may not be regarded as part of the territory of a state

TERRITORIAL SEA AND THE RIGHT OF INNOCENT PASSAGE

 A state has territorial supremacy over the territorial sea, exclusive
enjoyment of fishing rights and other coastal rights
 Limitation: Subject to the RIGHT OF INNOCENT PASSAGE (a foreign State
may exercise its right of innocent passage)
 Q: When is passage innocent?
 A: When it is not prejudicial to the peace, good order, or security of
the coastal State

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JURIS DOCTOR II PUBLIC INTERNATIONAL LAW

RIGHT OF INNOCENT PASSAGE (ARTICLE 19, UNCLOS)

 The right of continuous and expeditious navigation of a foreign shop
through a State’s territorial sea for the purpose of traversing that sea
without entering the internal waters or calling at a roadstead or port
facility outside the internal waters, or proceeding to or from internal
waters or a call at such roadstead or port facility

EXTENT AND LIMITATION OF THE RIGHT OF INNOCENT PASSAGE

 Extends to ALL ships – merchant and warships
 Submarines & underwater vehicles must navigate on the surface and
show their flag (Art 19-20, UNCLOS)
 Nuclear-powered ships, ships carrying nuclear and dangerous substances
must carry documents and observe special safety measures
 It is important to note that the right of innocent passage only applies to
foreign vessels.
 Effectively precludes a range of military operations, including practicing
or exercising weapons; collecting information to the prejudice of the
coastal State; launching, landing or taking on board any aircraft or
military device; and jamming coastal State communications
 Aircraft in flight are not entitled to innocent passage and thus aircraft
must remain onboard vessels during innocent passage.

RIGHT OF ASSISTANCE ENTRY

 An exception to the authority to deny innocent passage to aircraft
 based on the long-recognized duty of mariners to render immediate
rescue assistance to those in danger or distress at sea.
 permits entry into the territorial sea by ships or, under certain
circumstances, aircraft without permission of the coastal State for the
limited purposes of rescue or assistance.
 This principle of customary international law is also reflected in the “duty
to render assistance” described in Article 98, UNCLOS.

CONTIGUOUS ZONE (ARTICLE 33, UNCLOS)

 zone adjacent to the territorial sea, over which the coastal State may
exercise such control as is necessary to:
 Prevent infringement of its customs, fiscal, immigration or sanitary laws
within its territory or territorial sea;
 Punish such infringement
 extends to a maximum of 24 nautical miles from the baseline from which
the territorial sea is measured.

DOCTRINE OF HOT PURSUIT

 When the coastal state has good reasons to believe that a ship has
violated its laws, it may undertake “hot pursuit” of a foreign ship in order
to apprehend it
 Chase must commenced when the foreign ship is in the state’s
internal waters, territorial sea or contiguous zone
 It ends when the pursued foreign ship enters the territorial sea of its
own state or third state
 Continuous and unabated

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JURIS DOCTOR II PUBLIC INTERNATIONAL LAW

EXCLUSIVE ECONOMIC ZONE (EEZ)

 a maximum zone of 200 nautical miles from the baseline from which the
territorial sea is measured
 A coastal state enjoy sovereign rights over the EEZ
 Includes rights to explore, exploit, conserve and manage both living &
nonliving resources of the seabed & its subsoil (Art. 53, UNCLOS)
 All other states may share in the use of and access to any state’s EEZ.
 Art. 60(2) provides that coastal state has jurisdiction to apply customs laws
in respect to artificial islands, installations & structures on this zone

RIGHTS OF THE COASTAL STATE OVER THE EEZ

 sovereign rights for the purpose of exploring and exploiting its natural
resources
 rights are exclusive – if the State does not explore or exploit the
continental shelf, no one may do so without its express consent

RIGHTS OF THE OTHER STATES IN THE EEZ (ARTICLE 58, UNCLOS)

 Freedom of navigation and over flight
 Freedom to lay submarine cables and pipelines
 Freedom to engage in other internationally lawful uses of the sea related
to said functions
 States must have due regard to the rights, duties and laws of the coastal
state

CONTINENTAL SHELF
 comprises the seabed and subsoil of the submarine areas that extend
beyond the territorial sea throughout the natural prolongation of its land
territory to the outer edge of the continental margin
 to a distance of more than 200 nautical miles from the baselines form
which the breadth of the territorial sea is measured where the outer edge
of the continental shelf does not extend up to that distance
 Contain virtually all of the ocean’s nonliving organic resources including
oil & natural gas
 Art 76 provides that the continental shelf of a coastal state extends to the
edge of the continental margin
 The coastal state has sole sovereign rights to the natural resources of its
continental shelf
 The right of the coastal state must not cause any “unjustifiable
interference” with any rights of other that may inhere in the superjacent
waters.

ARCHIPELAGIC DOCTRINE
 emphasizes the unity of land and waters by defining an archipelago
either as a group of islands surrounded by waters or a body of waters
studded with islands
 it requires that baselines be drawn by connecting the appropriate points
of the “outermost islands to encircle the islands within the archipelago
 waters on the landward side of the baselines regardless of breadth or
dimensions are merely internal waters

ARCHIPELAGIC STATE

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JURIS DOCTOR II PUBLIC INTERNATIONAL LAW

 a designation used for certain island countries that consist of an

archipelago.
 Archipelago - an island group or island chain, is a chain, cluster or
collection of islands, or sometimes a sea containing a small number of
scattered islands
 legally defined by the UNCLOS
 Indonesia, Philippines and Fiji
 They have sovereignty over all waters within the archipelago subject to
certain restrictions

ARCHIPELAGIC WATERS
 A baseline is drawn between the outermost points of the outermost
islands, subject to these points being sufficiently close to one another.
 All waters inside this baseline are designated Archipelagic Waters and are
considered also as internal waters
 The state has sovereignty over these waters (like internal waters), but
subject to existing rights including traditional fishing rights of immediately
adjacent states.

BASELINE
 A baseline, as defined by the UNCLOS, is the line along the coast from
which the seaward limits of a state's territorial sea and certain other
maritime zones of jurisdiction are measured, such as a state's exclusive
economic zone.
 Normally, a sea baseline follows the low-water line of a coastal state.
 When the coast is deeply indented, has fringing islands or is highly
unstable, straight baselines may be used.

BASELINE THEORY/METHOD
 Normal Baseline Method
 Territorial sea is drawn from the low-water mark.
 Q: What is the low-water mark?
 A: The line on the shore reached by the sea at low tide. Otherwise
known as the “baseline.”
 Straight Baseline Method
 A straight line is drawn across the sea, from headland to headland, or
from island to island. That straight line then becomes the baseline from
which the territorial sea is measured.
 Q: What happens to the waters inside the line?
 A: CONSIDERED INTERNAL WATERS. However, the baseline must
not depart to any appreciable extent from the general direction
of the coast

RULES GOVERNING BASELINE

 Such baselines should not depart radically from the general direction of
the coast, or from the general configuration of the archipelago
 Within the baselines are included the main islands an area with a
maximum water area to land area ratio of 9:1
 Length of baselines shall not exceed 1—nautical mile
 XPN: Up to 3% of the total number of baselines may have a maximum
length of 125 nautical miles

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JURIS DOCTOR II PUBLIC INTERNATIONAL LAW

EFFECT OF BASELINES
 The waters inside the baselines are considered internal waters (landward
side) or archipelagic waters;
 The territorial sea, etc. are measured from such baselines;
 Archipelagic State exercises sovereign rights over all the waters enclosed
by the baselines

ARCHIPELAGIC SEA LANES PASSAGE

 Article 53 of the UNCLOS, restriction to the sovereignty of archipelagic
state
 The non-suspendable right of continuous and expeditious transit through
archipelagic waters in the normal mode through and over routes
normally used for navigation and over-flight.
 Foreign vessels (aircrafts & ships including submerged submarine) have
right of innocent passage through archipelagic waters (like territorial
waters).

ARCHIPELAGIC SEA LANES

 Archipelagic State must designate sea and air route for the continuous
and expeditious passage of foreign ships and aircraft through or over its
archipelagic waters and adjacent territorial sea
 Passage only for continuous, expeditious, and unobstructed transit
between 1 part of the high seas or an EEZ to another part of the high
seas or an EEZ

RIGHT OF TRANSIT PASSAGE OR FREEDOM OF NAVIGATION

 The right of transit passage is defined as the exercise of the freedoms of
navigation and overflight
 The right of transit passage is applicable to straits which are used for
international navigation, located in the territorial waters of the coastal
states, connecting different parts of the open sea or economic zones to
each other.
 Transit passage cannot be hampered or suspended by the coastal State
for any purpose during peacetime.
 applies to transiting ships, including warships, of States at peace with the
bordering coastal State but involved in armed conflict with another State.
 The right of transit passage applicable in peacetime and continue to
apply during armed conflict

EXCEPTION OF ROTP
 An exception to the right of transit passage declares that the right “shall
not apply if the strait is formed by an island of a State bordering the strait
and its mainland” and “there exists seaward of the island a route through
the high seas or through an exclusive economic zone of similar
convenience with respect to navigational and hydrographical
characteristics.”

DUTIES OF SHIPS AND AIRCRAFTS DURING TRANSIT PASSAGE

 Ships and aircraft shall:
 proceed without delay through or over the strait;

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 refrain from any threat or use of force against the sovereignty,

territorial integrity, or political independence of States bordering the
strait; and
 refrain from any activities other than those incident to their normal
modes of continuous and expeditious transit unless rendered
necessary by force majeure or by distress.

US FON IN SCS
 FON operation conducted by the USS Lassen in the South China on
October 27, 2015.
 In October 2016, a U.S. Navy destroyer sailed close to Woody Island,
which is also claimed by Taiwan and Vietnam, in the fourth such
operation by the U.S. Navy in the year.

ROIP v.ROTP
RIGHT OF INNOCENT PASSAGE RIGHT OF TRANSIT PASSAGE
Coastal states may deny entry to Coastal states cannot deny transit
aircraft attempting to traverse passage to aircraft over an
airspace over their territorial waters international strait
submarines to conduct innocent submarines can transit a passage
passage on the surface only and submerged
showing their flag
innocent passage may be transit passage may not be
temporarily suspended suspended by the coastal state

THE PHILIPPINE ARCHIPELAGO

 The Philippines adheres to the Archipelagic Doctrine – Art. I, 1987
Constitution:
 “The waters around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions, form part of
the internal waters of the Philippines.”

BASELINE LAW (REPUBLIC ACT NO. 9522)

 Amended RA 3046 as amended by RA 5446
 Defined the archipelagic baselines of the Philippines
 The Philippine archipelago comprises of 101 baselines

REGIME OF ISLANDS
 Defined by Section 2 RA 9522
 areas over which the Philippines likewise exercises sovereignty and
jurisdiction consistent with Article 121, UNCLOS
 These islands include:
 The Kalayaan Island Group as constituted under Presidential Decree
No. 1596; and
 Bajo de Masinloc, also known as Scarborough Shoal

CHALLENGING REPUBLIC ACT NO. 9522)

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 Magallona v. Ermita, G.R No. 187167, July 16, 2011

 Petitioner assailed the constitutionality of the law for three main
reasons: 1.it reduces the Philippine maritime territory under Article 1;
2.it opens the country’s waters to innocent and sea lanes passages
hence undermining our sovereignty and security; and 3.treating KIG
and Scarborough as ‘regime of islands’ would weaken our claim over
those territories.

THE REGIME OF THE HIGH SEAS

 belongs to everyone and to no one – both res commones and res nullius
 everyone may enjoy the following rights over the high seas: Navigation,
Fishing, Scientific research, Mining, Laying of submarine cables or
pipelines; and other human activities in the open sea and the ocean floor
 the freedoms extend to the air space above the high seas

PIRACY ON THE HIGH SEAS

 • Art 105 of the UNCLOS grants the right to every state to seize a pirate
ship or a ship taken by piracy and under control of pirates and arrest the
persons on board.
 The UN Security Council naval patrols have the authority to use force
against ships suspected of engaging in piratical acts.

DISPUTE SETTLEMENT ARISING FROM UNCLOS

 UNCLOS establishes the dispute settlement procedures regarding the
interpretation & application of its provisions.
 Parties are encouraged to settle disputes by means of their mutual choice
including negotiation and conciliation
 If these fails, compulsory binding settlement system becomes operative.
 3 forums: International Tribunal for the Law of the Sea, International Court
of Justice & an Arbitral Tribunal.
 Where disputing parties have not agreed to the same forum or have
chosen none at all, arbitration becomes the compulsory mechanism
 The Permanent Court of Arbitration
 Seabed Dispute Chamber of the ITLOS - disputes relating to marine
fisheries, environment, scientific research & navigation

INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA

 Established as one of the dispute settlement mechanisms under UNCLOS
 The tribunal is based in Hamburg
 Its jurisdiction comprises all disputes submitted to it in accordance with
the UNCLOS
 It has the power to prescribe provisional measures to preserve the
respective rights of parties to the dispute
 Decision of the Tribunal are final & binding as between the parties to the
dispute.

RP v. PROC
 PCA case number 2013–19, also known as the South China Sea Arbitration
 An arbitration case brought by RP against PROC concerning certain
issues in the South China Sea including the legality of China's Ninedash
line.

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 On 19 February 2013, China declared that it would not participate.

 On 29 October 2015, the arbitral tribunal ruled that it has jurisdiction over
the case
 On 12 July 2016, the Permanent Court of Arbitration ruled in favor of the
Philippines.
 The tribunal ruled that China has "no historical rights" based on the
"nine-dash line" map. The Tribunal found that China had violated the
Philippines’ sovereign rights in its exclusive economic zone by (a)
interfering with Philippine fishing and petroleum exploration, (b)
constructing artificial islands and (c) failing to prevent Chinese
fishermen from fishing in the zone.
 China has rejected the ruling, as has Taiwan

LECTURE NO. 3
AERIAL DOMAIN UNDER INTERNATIONAL LAW
AERIAL DOMAIN
 the airspace above the territorial and maritime domains of the State, to
the limits of the atmosphere
 does not include the outer space

AIR SPACE
 the air space above the State’s terrestrial and maritime territory
 “…Every State has complete and exclusive sovereignty over the air space
above its territory”
 Convention on International Civil Aviation – “Territory” – includes terrestrial
and maritime territory
 thus, includes air space above territorial sea
 NO right of innocent passage!
 the air space above the high seas is open to all aircraft, just as the high
seas is accessible to ships of all States
 the State whose aerial space is violated can take measures to protect
itself, but it does not mean that States have an unlimited right to
attack the intruding aircraft (intruding aircraft can be ordered either
to leave the State’s air space or to land)

5 AIR FREEDOMS
 overflight without landing;
 landing for non-traffic purposes;
 put down traffic from state to airline;
 embark traffic destined for state of aircraft; and
 embark traffic or put down traffic to or from a third state

PARIS CONVENTION OF 1919

 Each nation has absolute sovereignty over the airspace overlying its
territories and waters.
 A nation, therefore, has the right to deny entry and regulate flights (both
foreign and domestic) into and through its airspace.
 Aircraft of contracting states are to be treated equally in the eyes of
each nation's law.
 Each nation should apply its airspace rules equally to its own and foreign
aircraft operating within that airspace, and make rules such that its

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sovereignty and security are respected while affording as much freedom

of passage as possible to its own and other signatories' aircraft.
 Aircraft must be registered to a state, and they possess the nationality of
the state in which they are registered.

THE 1944 CHICAGO CONVENTION ON INTERNATIONAL CIVIL AVIATION

 It provides that every State has complete and exclusive sovereignty over
the airspace above its territory.
 It states the principle that aircraft have the nationality of the State in
which they are registered (notably, many rules governing aircraft,
provided in the Convention, have been copied from the rules governing
ships).
 It makes a distinction between scheduled and unscheduled air services.
 No scheduled international air service of one State may be operated
over or into the territory of another State, except with the special
permission or other authorization of that State, and in accordance with
the terms of such permission or authorization.
 Aircraft not engaged in scheduled international air services have the right
to make flights into or in transit non-stop across the territory of another
State, and to make stops for non-traffic purposes without the necessity of
obtaining prior permission of that State, subject, however, to the right of
the State flown over to require landing, or to impose certain restrictions,
such as routes and off-limit areas.
 The Chicago Conventions applies only to civil aircraft, not to State aircraft
which are used in military, customs and police services.
 State aircraft have no right to fly over the territory of another State or land
thereon without authorization by special agreement or otherwise, and in
accordance with the terms thereof.

OUTER SPACE
 the space beyond the airspace surrounding the earth or beyond the
national airspace, which is completely beyond the sovereignty of any
State
 the moon and the other celestial bodies form part of the outer space
(Moon Treaty of 1979)
 thus, it is not subject to national appropriation
 free for all exploration and use by all States and cannot be annexed by
any State
 governed by a regime similar to that of the high seas

1967 OUTER SPACE TREATY

 Outer Space is free for exploration and use by States; cannot be annexed
by any State
 Its use and exploration must be carried out for the benefit of all countries
and in accordance with international law
 Celestial bodies shall be used exclusively for peaceful purposes
 Nuclear weapons and weapons of mass destruction shall not be placed
in orbit around the earth
 Regard astronauts as envoys of mankind in outer space and shall render
to them all possible assistance in the event of accident, distress, or
emergency landing

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JURIS DOCTOR II PUBLIC INTERNATIONAL LAW

 Ownership of objects launched into outer space is not affected by their

presence in outer space or on a celestial body or by their return to the
Earth
 international co-operation in the peaceful exploration and use of outer
space

THE BOUNDARY BETWEEN THE AIR SPACE AND THE OUTER SPACE
 No accepted answer yet! There are different opinions:
 That it should be near the lowest altitude (perigee) at which artificial
earth satellites can remain in orbit without being destroyed by friction
with the air around 190 km from earth’s surface
 Theoretical limit of air flights is 90 km above the earth
 Functional Approach: The legal regime governing space activities are
based, not on a boundary line, but on the nature of the activities

END OF LECTURE

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