CHAPTER 7: LAW OF THE SEA

The sea covers more than 70% of the earth’s surface. It has performed two historic functions: as a medium of
transportation and as a reservoir of rich marine resources. Hence, it has spurred the growth of the international
law of the sea.
In the 17th century, Portugal sought to extend its national sovereignty over part of the high seas. Grotius wrote Mare
Liberum laying down the customary law that the open seas are accessible to all, but owned by none. He gave two
reasons to support the doctrine of freedom of the high seas:
• First, it is impossible for any state to claim territorial sovereignty by occupation.
• Second, the open sea is res communes, res gestium, or res extra commercium, because it is exhaustible
and universally used.
At present, the law of the high seas includes freedom of navigation, fisheries, scientific research, overflight, and
so-called freedom of immersion of submarine cables and oil pipelines. This law has become more important,
because of the danger posed by unrestricted fishing, which threatens the survival of whole species of marine life.
The UN Conference on Law of the Sea (UNCLOS) was held three times (1958, 1960, 1973). The conference
adopted the 1982 UN Convention on the Law of the Sea, which entered into force. Some provisions of the
Convention codify customary law, but may provisions strike new ground by indicating the directions in which new
customary law ay evolve in the future.
From land, the three ocean zones are: internal waters, territorial sea, and high seas. In the high seas adjacent to
the territorial sea, coastal states claim limited rights in such areas as the contiguous zone, exclusive fisher zone,
exclusive economic zone, and the continental shelf.
INTERNAL WATERS.
Lakes and rivers are considered internal waters. All "archipelagic waters" within the outermost islands of an
archipelagic state such as Indonesia or the Philippines are also considered internal waters, and are treated
the same with the exception that innocent passage through them must be allowed.
The 1982 Convention, Article 8, par. 1, defines internal waters as the waters on the landward side of the baseline
from which the width of the territorial sea is measured. Thus, internal waters consist of ports, harbors, rivers,
lakes, and all waters on the landward side.
Under Article 2, internal waters fall under the sovereignty of the coastal state; therefore, the coastal state has
the right to prohibit entry into its ports by foreign ships. There are two exceptions: when a right of innocent
passage has previously existed; and when a ship is seeking refuge from a storm, or is severely damaged.
Treatment extended by the coastal state depends upon the classification of foreign ships into commercial and non-
commercial. Commercial ships are often called merchant ships, while non-commercial ships are usually warships.
With respect to merchant ships in its internal waters, the coastal state may apply and enforce its laws in full, even
for pollution offense that may have taken place elsewhere. The sole exception is that the coastal state will not
interfere, when the captain exercises disciplinary powers over the crew.
Even if a crew member has committed a crime, but it does not affect the good order of the coastal state or any of its
inhabitants, the coastal state, as a matter of grace and convenience, will usually waive jurisdiction, and allow the
crime to be tried by the court of the flag state.

• A special case us represented by ships in distress, which possess limited immunity.

 • For example, the coastal state is not allowed to impose harbor duties and similar taxes which exceed the
cost of services rendered.
For foreign warships, the coastal state has much less powers. It can order the warship to leave its internal
waters immediately, but while in internal waters warships are immune from enforcement. Coastal state authorities
cannot enter the ship or carry out any act on board, without the captain’s permission. The coastal state cannot
prosecute the crew for crimes committed on shore.

• This immunity of the warship may be waived by the flag state.

TERRITORIAL SEA.
Those 12 nautical miles constitute the country's territorial sea. Anything within the 12 nautical mile area
is Philippine territory, which means that anyone or anything within that zone is subject
to Philippine laws. Philippine territory ends past the 12th nautical mile.
The territorial sea is sometimes known as territorial waters or the maritime belt. Under the 1982 Convention Article
3, “every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles,
measured from baselines determined in accordance with this Convention.” The territorial sea is measured from a
baseline consisting of the low-water line, meaning the line on the shore reached by the sea at low tide.
The 1982 Convention, Article 2, par 1, provides that the coastal state exercises sovereignty over its territorial sea.
This includes the exclusive right to fish, and to exploit resources of the seabed and subsoil of the territorial sea. It
also includes the exclusive right to enjoy airspace above the territorial sea. Foreign aircraft, unlike ships, have no
right of innocent passage. It further includes the exclusive right on the part of the coastal state’s ships to transport
goods and passengers from one part of the coastal state to another, also known as the Right of Cabotage.
For as long as the coastal state remain during wartime, its territorial sea may not be used by belligerent states to
engage in combat, or capture merchant ships. Regulations over the territorial sea issued by the coastal state
concerning navigation, health, custom duties, and immigration must be obeyed by foreign ships. The coastal state
may exercise certain powers of arrest over merchant ships exercising a right of innocent passage, and over
persons on board such ships.
Although the coastal state exercises sovereignty over its territorial sea, there is one important limitation, the Right of
Innocent Passages, which refers to the passage by foreign ships which is not prejudicial to the peace, good
order, or security of the coastal state. Fishing vessels must comply with the laws of the coastal state intended to
prevent foreign fishing. Submarines must navigate on the surface and show their flag.
In return, the coastal state must not hinder innocent passage, and has an obligation to warn foreign ships of
known dangers to navigation in the territorial sea.
The coastal state may prevent passage when it is not innocent. When passage is innocent, it may invoke
security reasons in suspending such passage in specified areas of the territorial sea, provided that the areas
do not constitute “straits which are used for international navigation between one part of the high seas and
another part of the high seas or the territorial sea of a foreign state”. A similar right of innocent passage extends
to warships.
ARCHIPELAGO.
Under the 1982 Convention, archipelagic states are governed by a regime set our in Articles 46-54. An archipelagic
state is defined as a state constituted wholly by one or more archipelagos and may include other islands.
And archipelago is defined as a group of islands, including parts of islands, interconnecting waters and
other natural features which are so closely interrelated that such islands, waters and other natural features
form an intrinsic geographical economic and political entity, or which historically have been regarded as
such.
There are 14 archipelagic states, consisting of Bahamas, Cape Verde, Comaros, Fiji, Indonesia, Maldives,
Mauritius, Papua New Guinea, Philippines, Sao Tomes and Principle, Seychelles, Solomon Islands, Trinidad
and Tobago, and Vaunatu.
An archipelagic state has a right to employ straight baselines, provided they shall not depart to any appreciable
extent from the general configurations of the archipelago. The waters enclosed by the straight baselines are known
as archipelagic waters. State sovereignty over archipelagic waters is subject to two limitations: right of innocent
passage for ships of all states; and the right of archipelagic seas lances passage through the routes
normally used for international navigation.
Under customary law, a straight baseline is also drawn across the mouth of a bay and the width of the
territorial sea is measure from such lines. Under Article 10, the maximum permissible length of the baseline is 24
miles. This provision does not apply to historic bays, which are defined as bays which the coastal state claims to
be entitled to treat as internal waters, not by virtue of the general law, but by virtue of a special historic right.
In the 1992 Gulf of Fonesca case, the historic bay held to be subject to the right of innocent passage. The ICJ thru
chamber also held that the bay is now held in sovereignty jointly by 3 countries, but excluding the existing 3-mile belt
held under the exclusive sovereignty of each state.
EXCLUSIVE ECONOMIC ZONE.
The Exclusive Economic Zone (EEZ) comprises an area which extends either from the coast, or in federal
systems from the seaward boundaries of the constituent states (3 to 12 nautical miles, in most cases) to 200
nautical miles (370 kilometres) off the coast.
Article 33 provides that the contiguous zone may not extend beyond 24 nautical miles from the baselines from which
the breadth of the territorial sea is measured. This means that if a state has a territorial sea of 12 miles, it will be
entitled to a contiguous zone of a further 12 miles. In the contiguous zone, state jurisdiction is limited to customs,
sanitation, and immigration matters.
Under Article 55, the Zone is described as an area beyond and adjacent to the territorial sea, subject to the specific
legal regime established under the Convention. Under Article 57, this Zone shall not extend beyond 200 nautical
miles from the baselines, from which the breadth of the territorial sea is measured.
Within the Zone, under Article 56 the coastal state has sovereign rights of exploration, exploitation, conservation and
management of the natural resources, whether living or non-living. These rights include the production of energy from
the water, currents, and winds.
The zone consists of water superjacent to the seabed, and the seabed and its subsoil. The coastal state also
enjoys jurisdiction with regard to: the architecture and use of artificial islands, installations, and structures;
marine scientific research; and the protection and preservation of the marine environment.
The right of coastal states to claim exclusive fishing and mining rights for 200 miles is now a rule of customary law.
This was the holding of the ICJ in 1982, when it ruled: “The concept of the exclusive economic zone… may be
regarded as part of modern international law.”
CONTINENTAL SHELF.
A continental shelf is the edge of a continent that lies under the ocean. ... Ergo, these have been included
under International law which confirms each coastal state's right to explore and exploit the natural resources
of its continental shelf both through treaty and customary usage.
The 1982 Convention, Article 76, paragraph 1 provides:
The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas 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.
The legal limit for both the exclusive economic zone and the continental shelf is the same – 200 miles. But in
addition, Article 76, paragraph 3 provides for the continental margin, which is described as comprising “the
submerged prolongation of the land mass of the coastal state,” consisting of “the seabed and subsoil of the shelf, the
slope and the rise” but not including “the deep ocean floor with its oceanic ridges or the subsoil thereof.”
Under Article 77, the coastal state has sovereign rights over the shelf for the exploration and exploitation of natural
resources. These rights are exclusive in the sense that if they are not exercised by the coastal state, its express
consent is required by other states who wish to do instead.
The term natural resources includes both non-living resources of the seabed and subsoil such as minerals, as
well as living organisms, but only if they belong to sedentary species. Such sedentary species are defined as
organism which, at the harvestable stage, are either immobile or under the seabed or are unable to move
except in constant physical contact with the seabed or subsoil.
The delimitation of the continental shelf between opposite and adjacent states is governed by Article 83, which
provides that delimitation shall be affected by agreement on the basis of international law… in order to achieve an
equitable solution. The ICJ held that the satisfaction of equitable principles is, in the delimitation process, of cardinal
importance.
In the Gulf of Maine case, the court restated the two principles of customary law governing maritime
delimitation. (the action of fixing the boundary or limits of something.)
✓ First, delimitation can be affected by agreement between the parties, if necessary, with the aid of
third parties, but it should not be unilateral.
✓ Second, delimitation is to be affected by the application of equitable criteria and by the use of
practical methods capable of ensuring, with regard to the geographic configuration of the are and
other relevant circumstance, an equitable result.
HIGH SEAS.
High seas, in maritime law, all parts of the mass of saltwater surrounding the globe that are not part of the
territorial sea or internal waters of a state. For several centuries beginning in the European Middle Ages, a
number of maritime states asserted sovereignty over large portions of the high seas.
The 1982 Convention, Article 83 provides that the concept of the high seas “apply to all parts of the sea that are not
included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in archipelagic
waters of an archipelagic State.” Article 87, provides that the high seas is governed by the Convention and other
rules of international law. Which includes:
 ▪ Navigation
▪ Overflight
▪ Laying of submarine cables and pipelines
▪ Construction of artificial islands and other installations permitted under international law
▪ Fishing
▪ Scientific research
▪ Naval exercises
Article 88 provides that the high seas shall be reserved for peaceful purposes. Hence, parties to the convention are
prohibited from testing nuclear weapons on the high seas. For a state that is not party to the convention, a similar
prohibition might apply as a result of customary law, as evidenced by treaties prohibiting nuclear weapons concluded
from 1963-95.
The freedom of the high seas applies to both coastal states and landlocked states. Article 125, provides that
landlocked states have the right to access to and from the sea, and accordingly enjoy freedom of transit through the
territory of transit states by all means of transport, as shall be determined by bilateral or regional agreements.
JURISDICTION OF THE HIGH SEAS.
Under Article 90, every state has the right to sail on the high seas’ ships flying its flag. Under article 91, every state
shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and the right
to fly its flag.

• Ships have the nationality of the state whose flag they are entitled to fly, provided that there exists a genuine
link between the state and the ship.
Under article 92, ships may sail under the flag of one state only, and are subject to the executive jurisdiction of that
state on the high seas. Exceptions could be provided for the convention itself, or in international treaties.

• Negates the obsolete notion that a ship bearing the national flag of a state is treated for purposes of
jurisdiction as if it were a “floating island” or territory of the state. – a ship is not part of the territory of the flag
state; the state merely exercises jurisdiction over the ship, in the same way that it does over its own territory.
• Does not provide for the so-called “flag of convenience” – refers to a ship that has only one flag, but it is
registered in a state offering favorable “open registry” conditions for foreign ship owners.
- Starke: these states are nevertheless subject to the stipulation of Article 91 (genuine link between ship
and flag state) and 94 (effective exercise of control).
The issue of flag of convenience is addressed by the 1986 Convention on Conditions of Registration of ships, drafted
by a 1984 conference under the auspices of the UN Conference on Trade and Development. The agreement
provides that flag states should provide in their laws and regulations for the ownership of ships flying their flags.
The rules and regulations should include appropriate provisions for participation by nationals as owners of such
ships. Such provision should be sufficient to permit the flag state to exercise effectively its jurisdiction and control
over ships flying its flag.
The issue of the genuine link was raised during the Iran-Iraq war, after Iran attacked Kuwaiti ships. On the request of
Kuwait both the US and the UK reflagged the Kuwait tankers in the Gulf, in order to protect them. Both states
naturally argued that they had satisfied the genuine link requirement.
The concept of the ‘genuine link’ as applied to the nationality of merchant ships is contained in international
treaty law as well as in relevant international courts’ practice.
EXCEPTIONS TO FREEDOM OF HIGH SEAS.
The term Flag State came to existence because of the usage of flags as the symbol of the nationality or tribe
the ships belong to from the early days. The flag has come to be an officially sanctioned and very powerful
symbol of the State and is the visible evidence of the nationality conferred by the State upon ships
registered under its national law. The ship’s flag displays the nationality of the ship, under whose laws the ship is
playing in the international waters.
1. Right of visit. Under the customary law, warships have a right of approach to ascertain the nationality
of ships. Under the convention, Article 110, a warship has a right of visit where the ship is engaged in
unauthorized broadcasting.
- Jurisdiction over unauthorized broadcasting from the high seas (‘unauthorized broadcasting’),
sometimes inaccurately called ‘pirate broadcasting’, is the most unusual form of criminal
jurisdiction created under UNCLOS. The evolution of this limited treaty jurisdiction can only be
understood in historical context.
2. Piracy. Any state may seize a pirate ship or aircraft on high seas or on terra nullius over the persons
and seize the property on board. The essence of piracy under international law is that it must be
committed for private ends.”
Article 101. Piracy consists of the following acts:
(a) any illegal acts of violence or detention, or any act of depredation, committed for private
ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against persons or property
on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of
any State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with
knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or
(b).
3. The Slave Trade. Article 99 provides that every state shall take effective measures to prevent and
punish the transport of slaves in ships authorized to fly its flag and to prevent the unlawful use of its
flag for that purpose. Article 110 provides that warships may board foreign merchant ships when they
are reasonably suspected of engaging in the slave trade; offenders must be handed over to the flag
state for trial.
- In 1956 the United Nations adopted a Supplementary Convention on the Abolition of Slavery, the Slave
Trade and Institutions and Practices Similar to Slavery.
- Moreover, the International Court of Justice (ICJ) considers the prohibition of slavery as an
obligation erga omnes.
4. Unauthorized broadcasting. Article 109 provides that all states shall cooperate in the suppression of
unauthorized broadcasting from the high seas. Unauthorized broadcasting means transmission of
sound or TV from a ship or installation on the high seas intended for reception by the general
public, contrary to international regulations, but excluding the transmission of distress calls.
5. Hot pursuit. Article 111 provides that hot pursuit may commence when the authorities of the coastal
state have good reason to believe that the foreign ship has violated its laws.
✓ The pursuit must start while the ship, or one of its boats, is within the internal waters,
territorial sea, or contiguous zone of the coastal state, and may only continue outside the
territorial sea or contiguous zone if it is uninterrupted.
 ✓ If the pursuit commences while the foreign ship is in the contiguous zone or archipelagic
waters, it may be undertaken only if there has been a violation of the rights for the
protection of which the zone or waters were established.
✓ Pursuit may only be exercised by warships or military aircraft or specially authorized
government ships or planes. The pursuing ship must at a distance give a visual or auditory
signal to stop, such that it can be seen or heard by the foreign ship.
- The right of a coastal state to pursue a foreign ship within its territorial waters (or possibly its contiguous
zone) and there capture it if the state has good reason to believe that this vessel has violated its laws.
The hot pursuit may – but only if it is uninterrupted – continue onto the high seas, but it must terminate
the moment the pursued ship enters the territorial waters of another state, as such pursuit would involve
an offence to the other state (unless during conflict); in these circumstances extradition should be
employed instead. The doctrine applies equally to aircraft that intrude into local airspace.
6. Collisions. Article 97, overruling the Lotus decision, provides that penal or disciplinary proceedings may
only be taken against the master or other persons in the service of the ship by the authorities of
either the flag state or the state of which the particular person is a national.
- an instance of one moving object or person striking violently against another.
7. Treaty rights. Applies to the parties to the treaty. To suppress the slave trade. The 1984 convention for the
Protection of Submarine Cables gave the warships of contracting states the right to stop and ascertain the
nationality of merchant ships that were suspected of violating the convention.
INTERNATIONAL SEABED.
The international seabed area - the part which is under ISA jurisdiction - is the seabed and ocean floor and
the subsoil thereof, beyond the limits of national jurisdiction. The international seabed area represents
around 50 per cent of the total area of the world's oceans.
The international seabed. As a source of mineral wealth, the international seabed poses a technical challenge to
developing states, particularly those which depend upon export earning of certain minerals.
Under 1982 Convention, Article 1, the area is defined as the “seabed and ocean floor and subsoil thereof beyond
national jurisdiction.” Thus, the area starts at 200 nautical miles from the baselines, or at the outer edge of the
continental margin. The area and its resources constitute the common heritage of mankind, and no
sovereign or other rights may be recognized.
Under article 136-40, minerals recovered from the area are alienable, activities in the area shall be carried out for the
benefit of mankind as a whole by or on behalf of the international seabed authority.
Under article 158-69, the authority consists of an assembly and a council. The assembly is composed of all state
parties to the convention; the council of 36 members elected by the assembly. Under article 153, the operating arm of
the authority is the enterprise, which shall carry out, activities in the area.
The 1982 convention came into force in 1994. The ate parties concluded the 1994 agreement on implementation of
the seabed provisions of the 1982 convention. The annex to the 1994 agreement was mainly the result of issues
raised by developed states.
Under section 1, all organs shall be cost-effective. Under section 2, the enterprise shall conduct its initial deep
seabed mining operations through joint ventures that accord with sound commercial principles. Under section 5,
transfer of technology to the enterprise and developing states shall be conducted on fair and reasonable commercial
terms on the open market or through joint-venture agreements.
Under the annex section 3, the agreement guarantees a seat on the council for the US, as the state which on the
date of entry into force of the convention has the largest economy in terms of gross domestic product.
PHILIPPINE CASES.
Constitutionality of the 200 Philippine Archipelagic Baseline Law.
Magalona vs. Ermita
Case Notes:
An act to amend certain provisions of RA 3046, as amended by RA 5446, to define the archipelagic baseline of the
Philippines and for other purposes.
RA 9522, adjusting the country’s archipelagic baselines and classifying the baselines regime of nearby territories.
RA 3046, demarcating the maritime baselines of the PH as an archipelagic state. – framing of the convention on the
territorial sea and the contiguous zone in 1958. (UNCLOS)
UNCLOS III, prescribes the water-land ratio, length, and contour of baselines of archipelagic states, and sets the
deadline of the filing of application for the extended continental shelf.

• RA 9522 shortened one baseline, optimizes the location of some base points around the PH and classified
adjacent territories:
- Kalayaan Island Group
- Scarborough Shoal. – regime of islands; generate own applicable zones
KALAYAAN GROUP OF ISLANDS:

• 1946, VP Elpidio Quirino reiterated the “New Southern Islands” as part of the PH
• 1947, Tomas Cloma, discovered a group of several uninhabited and unoccupied islands or islets in the
rustiness of the Luzon Sea.
• Part of Spratly Islands
SCARBOROUGH SHOAL

• Bajo de Masinloc, Panatag Shoal, Huangyan Island, and Democracy Reef

- Two rocks in a shoal located in between the Macclesfield Bank and Luzon in the South China Sea.
- Largest island of PH.
• Rock in the South China Sea approximately 120 nautical miles west of the PH island of Luzon.
CONSTITUTIONALITY OF RA 9522:
1. RA 9522, reduces PH maritime territory and logically, the reach of the PH state’s sovereign power in
violation of the 1987 Constitution, Article 1, embodying the terms of the treaty of Paris and ancillary treaties;
2. RA 9522, opens the country’s waters landward of the baseline to maritime passage by all vessels and
aircrafts, undermining PH sovereignty and national security, contravening the country’s nuclear-free policy,
and damaging marine resources, in violation of relevant constitutional provisions.
o RA 9522’s treatment of the Kalayaan Island Group as a regime of islands not only results in the
loss of a large maritime area but also prejudices the livelihood of subsistence fishermen. –
excluded and included: the failure to reference either the Treaty of Paris or Sabah and its use of
UNCLOS III framework of the regime of islands.
RA No. 9522 is a statutory tool to demarcate the country’s maritime zones and continental shelf under
UNCLOS III, not to delineate Philippine territory.
Petitioners: RA 9522 dismembers a large portion of the national territory because it discards the pre-UNCLOS III
demarcation of the PH territory under the Treaty of Paris and related treaties.
SC RULED RA 9522 NOT UNCONSTITUTIONAL.
Under tradition international law typology, states acquire territory through occupation, accretion, cession and
prescription, not by executing multilateral treaties on the regulations of sea-use rights of enacting statutes to comply
with the treaty’s term to delimit maritime zones and continental shelves. – territorial claims are outside UNCLOS III,
and are instead governed by the rules on general international law.
Baseline laws are nothing but statutory mechanisms for UNCLOS III state parties to delimit with precision the extend
of their maritime zones and continental shelf. – this gives notice to the rest of the international community of the
scope of maritime space and submarine areas within which state parties exercise treaty-based rights.
Baseline laws such as RA 9522 are enacted by UNCLOS III state parties to mark out specific basepoints along their
coasts from which baselines are drawn either straight or contoured, to serve as geographic starting points to
measure the breadth of the maritime zones and continental shelf.
Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the exclusive
economic zone and the continental shelf. The breadth of the territorial sea, the contiguous zone, the
exclusive economic zone and the continental shelf shall be measured from archipelagic baselines drawn in
accordance with article 47.
UNITED NATIONS CHARTER: use force is no longer valid means of acquiring territory.
PREAMBLE (UNCLOS): matters not regulated by this convention continue to be governed by the rules and
principles of general international law.
RA 9522 – only way to draw the baselines in conformity with UNCLOS III.
- The baselines cannot be drawn from the boundaries of other portions of the rectangular area delineated
in the Treaty of Paris, but from the outer most islands and drying reefs of the archipelago.
Petitioners: RA 9522’s use of UNCLOS III regime of islands framework weakens our territorial claim over the area.
- The KIG and Scarborough Shoal’s exclusion from the baseline results in the loss of about 15,000
square nautical miles of territorial waters prejudicing the livelihood of subsistence fishermen.
RA No. 9522’s use of the framework of regime of islands to determine the maritime zones of the KIG and the
Scarborough Shoal, not inconsistent with the Philippine’s claim of sovereignty over these areas.
RA 9522, by optimizing the location of basepoints. Increased the PH’s total maritime space (internal waters, territorial
sea, EZZ) by 145,216 square nautical miles.
✓ Internal: 4,577
✓ Territorial: 242,030
✓ Total: 145,216
Section 2. Which the PH likewise exercise sovereignty and jurisdiction shall be determined as regime of islands
under the Republic of the Philippines consistent with Article 121 of the UNCLOS:
a. Kalayaan Island Group as constituted under PD 1596
b. Bajo de Masinloc (Scarborough Shoal)
Breach of two provisions:
1. UNCLOS III, Art. 47 (3) requires that the drawing of such baselines shall not depart to any appreciable
extent from the general configuration of the archipelago.
2. Art 47 (2) requires that the length of the baselines shall not exceed 100 nautical miles, save for the 3% of
the total number of baselines which can reach up to 125 nautical miles.
The drawing of such baseline shall not depart to any appreciable extent from the general configuration of the
archipelago.
Principal Sponsor RA No. 9522. Senator Miriam Defensor Santiago
“Sa loob ng ating baseline, dapat magkalapit ang mga islands. Dahil malayo ang Scarborough Shoal, hindi natin
masasabing malapit sila satin although we are still allowed by international law to claim them as our own.”
Invalidity of RA No. 9522 is untenable:
Sec 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided
in this act is without prejudice to the delineation of the baselines of the territorial sea around the
territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has
acquitted dominion and sovereignty.
UNCLOS III – an archipelago state may have internal waters: such as those enclosed by the closing lines across
bays and mouths of rivers.
Art 2, Sec.2 (1987) – uses archipelagic waters separately from territorial sea.
UNCLOS III and RA 9522 not incompatible with the Constitution’s Delineation of Internal waters.
UNCLOS III:
Article 52 Right of innocent passage
1. Subject to article 53 and without prejudice to article 50, ships of all States enjoy the right of
innocent passage through archipelagic waters, in accordance with Part II, section 3.
2. The archipelagic State may, without discrimination in form or in fact among foreign ships, suspend
temporarily in specified areas of its archipelagic waters the innocent passage of foreign ships if
such suspension is essential for the protection of its security. Such suspension shall take effect
only after having been duly published.
Article 53 Right of archipelagic sea lanes passage
1. An archipelagic State may designate sea lanes and air routes there above, suitable for the
continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic
waters and the adjacent territorial sea.
2. All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air
routes.
3. Archipelagic sea lanes passage means the exercise in accordance with this Convention of the
rights of navigation and overflight in the normal mode solely for the purpose of continuous,
expeditious and unobstructed transit between one part of the high seas or an exclusive economic
zone and another part of the high seas or an exclusive economic zone.
4. Such sea lanes and air routes shall traverse the archipelagic waters and the adjacent territorial sea
and shall include all normal passage routes used as routes for international navigation or overflight
 through or over archipelagic waters and, within such routes, so far as ships are concerned, all
normal navigational channels, provided that duplication of routes of similar convenience between
the same entry and exit points shall not be necessary.
5. Such sea lanes and air routes shall be defined by a series of continuous axis lines from the entry
points of passage routes to the exit points. Ships and aircraft in archipelagic sea lanes passage
shall not deviate more than 25 nautical miles to either side of such axis lines during passage,
provided that such ships and aircraft shall not navigate closer to the coasts than 10 per cent of the
distance between the nearest points on islands bordering the sea lane.
6. An archipelagic State which designates sea lanes under this article may also prescribe traffic
separation schemes for the safe passage of ships through narrow channels in such sea lanes.
7. An archipelagic State may, when circumstances require, after giving due publicity thereto,
substitute other sea lanes of traffic separation schemes for any sea lanes of traffic separation
schemes previously designated or prescribed by it.
8. Such sea lanes and traffic separation schemes shall conform to generally accepted international
regulations.
9. In designating or substituting sea lanes or prescribing or substituting traffic separation schemes, an
archipelagic State shall refer proposals to the 43 competent international organization with a view
to their adoption. The organization may adopt only such sea lanes and traffic separation schemes
as may be agreed with the archipelagic State, after which the archipelagic State may designate,
prescribe or substitute them.
10. The archipelagic State shall clearly indicate the axis of the sea lanes and the traffic separation
schemes designated or prescribed by it on charts to which due publicity shall be given.
11. Ships in archipelagic sea lanes passage shall respect applicable sea lanes and traffic separation
schemes established in accordance with this article.
12. If an archipelagic State does not designate sea lanes or air routes, the right of archipelagic sea
lanes passage may be exercised through the routes normally used for international navigation.
Whether referred to as PH internal waters under Article 1 of the constitution or as archipelagic waters under
UNCLOS III Article 49 (1), the PH exercises sovereignty over the body of water lying landward of the
baselines, including the airspace over it and the submarine areas underneath.
The political branches of the PH government, in the competent discharge of their constitutional powers, may pass
legislation designating routes within the archipelagic waters to regulate innocent and sea lanes passage.
In the absence of municipal legislation, international law norms now codified in UNCLOS III, operate to grant innocent
passage rights over the territorial sea or archipelagic waters, subject to the treaty’s limitations and conditions for their
exercises.
Article 17. Right of innocent passage. Subject to this Convention, ships of all States, whether coastal or
land-locked, enjoy the right of innocent passage through the territorial sea.
Article 18. Meaning of passage.
1. Passage means navigation through the territorial sea for the purpose of:
a. traversing that sea without entering internal waters or calling at a roadstead or port facility
outside internal waters; or
b. proceeding to or from internal waters or a call at such roadstead or port facility.
2. Passage shall be continuous and expeditious. However, passage includes stopping and anchoring,
but only in so far as the same are incidental 31 to ordinary navigation or are rendered necessary by
 force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in
danger or distress.
The imposition of these passage rights through archipelagic waters under UNCLOS III was a concession by
archipelagic states, in exchange for their right to claim all the waters landward of their baselines, regardless
of their depth or distance from the coast, as archipelagic waters subject to their territorial sovereignty.
Separate islands generate their own maritime zones, placing the waters between islands separated by more than 24
nautical miles beyond the States’ territorial sovereignty, subjecting these waters to the rights of other states under
UNCLOS III.
Two fronted disasters:
1. It sends an open invitation to the seafaring powers to freely enter and exploit the resources in the waters
and submarine areas around our archipelago;
2. It weakens the country’s case in any international dispute over PH maritime space.
RA No. 9522 and the Philippines’ Maritime Zones.
Article 58. Rights and duties of other States in the exclusive economic zone
1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the
relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and
overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses
of the sea related to these freedoms, such as those associated with the operation of ships, aircraft
and submarine cables and pipelines, and compatible with the other provisions of this Convention.
2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic
zone in so far as they are not incompatible with this Part.
3. In exercising their rights and performing their duties under this Convention in the exclusive
economic zone, States shall have due regard to the rights and duties of the coastal State and shall
comply with the laws and regulations adopted by the coastal State in accordance with the
provisions of this Convention and other rules of international law in so far as they are not
incompatible with this Part.
Article 87 Freedom of the high seas.
1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is
exercised under the conditions laid down by this Convention and by other rules of international law.
It comprises, inter alia, both for coastal and land-locked States:
a. freedom of navigation;
b. freedom of overflight;
c. freedom to lay submarine cables and pipelines, subject to Part VI;
d. freedom to construct artificial islands and other installations permitted under international
law, subject to Part VI;
e. freedom of fishing, subject to the conditions laid down in section 2;
f. freedom of scientific research, subject to Parts VI and XIII.
2. These freedoms shall be exercised by all States with due regard for the interests of other States in
their exercise of the freedom of the high seas, and also with due regard for the rights under this
Convention with respect to activities in the Area.
 Wild valley Shipping Co., Ltd vs. Court of Appeals
Philippine Roxas, a vessel owned by Philippine President Line, Inc. arrived in Puerto Ordaz, Venezuela to load iron
ore. – Mr. Ezzar (official pilot) was designated by the harbor authorities in Puerto Ordaz to navigate Philippine Roxas
through the Orinoco River.

• Philippine Roxas experienced some vibrations when it entered the San Roque Channel at Mile 172.
• Between mile 157 and 158, the vessel again experienced some vibrations.
As a result of the blockage, the Malandrinon, a vessel owned by petitioner was unable to sail out of Puerto Ordaz. –
petitioner filed a suit against Philippine President Lines, Inc. for damages in the form of unearned profits and
interests.
Issue: Whether or not Venezuelan law is applicable to the case at bar?
Ruling: it is well-settled that foreign laws do not prove themselves in our jurisdiction and our courts are not
authorized to take judicial notice of them. Like any other fact, they must be alleged and proved.
Foreign public document:
1. Must be attested by the officer being legal custody of the records or by his deputy;
2. Must be accompanied by a certificate by a secretary of the embassy or legation, consul general, consul
vice, consular or consular agent ot foreign service officer, and with the seal of his office.
Respect to proof of written laws, parole proof is objectionable, for the written law itself is the best evidence. – when a
foreign statute is involved, the best evidence rule requires that it be proved by a duly authenticated copy of the
statute.
VENEZUELAN LAW WAS NOT PLEADED BEFORE THE LAW.
A foreign law is considered to be pleaded if there is an allegation in the pleading about the existence of the foreign
law, its import and legal consequence on the event or transaction in issue.
The supreme court reiterated that under the rules of private international law, a foreign law must be properly pleaded
and proved as a fact.
In the absence of pleading and proof, the laws of a foreign country, or state will be presumed to be the same
as our own local or domestic law and this is known as PROCESUAL PRESUMPTION.

• Doctrine of Processual Presumption – The foreign law, whenever applicable, should be proved by
the proponent thereof, otherwise, such law shall be presumed to be exactly the same as the law of the
forum.
 Okamoto vs. Collector of Customs
Collector of Customs seized a Japanese fishing boat, the Hosho Maru – due to violations of customs and quarantine
laws. – the vessel had taken refuge in the PH waters on account of stress of weather and that it was not engaged in
the importation of merchandise in any PH port and had not violated custom laws.
The right of asylum from stress of weather is a right well recognized by international law and is in
accordance with the dictates of Christianity. – the only limitation is that the weather must be such as to
create an honest belief in the mind.
 United States vs. Look Chaw
Chief of the department of the port of Cebu went abroad the steam ship Eroll, which was of English nationality, to
inspect and search its cargo. – found sacks containing cans of opium.

• When defendant was arrested, he stated freely and voluntarily that he bought sacks in Hong Kong with
intention of selling it as contraband. - charged with unlawful possession of opium. – moved to dismissal:
the court had no jurisdiction to try the case. – Lower court: it did not lack jurisdiction and it tried and
convicted the defendant.
General rule: constitute a crime triable by the courts of the islands, such vessel being considered as an extension of
its own nationality, the same rule does not apply when the article, the use of which is prohibited in the islands, is
landed from the vessel upon PH.
Criminal Law:
Mere possession of opium on such a ship without being used in our territory, does not bring about in this country
those disastrous effects that our law contemplates avoiding. – but said courts acquire jurisdiction when the tins of
opium are landed from the vessel on Philippine soil. (landing and using of opium is an open violation of the laws of
PH.)
 Compagnie de Commerce vs. Hamburg Amerika
The sambia had just completed loading a cargo of rice meal in the port of Saigon, under contract of affreignment with
a French shipper for delivery in Dunkirk or Hamburg. The Master of German vessel fled with his vessel and her cargo
and took refuge in Manila Bay during the outbreak of World War I. – defendant failed to deliver the cargo to their
stipulated destinations, plaintiff sought to recover full value of the cargo, plus interest and damages.
6th convention. – 2nd Hague Peace Conference (1907). – recognized the practice of granting days of grace and safe
conducts to enemy merchant vessels found in the port of a belligerent at the commencement of hostilities, not as a
right, but simply as a privilege, a delai de faveur, which may be accorded or refused at the option of the belligerent.
 Calme vs. Court of Appeals
Petitioner and four others were accused of murder in the RTC od Oroquite City. – took place in an inter-island
passenger ship while the vessel was sailing from Ozamis to Cebu. – petitioners filed on the ground that the court had
no jurisdiction because the crime took place while the vessel was in Siquijor.
The marine protest that the vessel was within the waters of Siquijor islands when the captain was informed of the
incident. - does not necessarily prove that the alleged murder took place in the same area.
In any case where the crime was actually committed is immaterial since it is undisputed that it occurred while the
vessel was in transit.

• “in transit” simply means “on the way or passage; while passing from one person or place to another. In
the course of transportation.
Rules of Court, Rule 110. Section 15. Place where action is to be instituted. Where an offense is committed on
board a vessel in the course of its voyage, the criminal action shall be instituted and tried in the court of the first port
of entry or of any municipality or territory where the vessel passed during such voyage, subject to the generally
accepted principles of international law.
 De La Fuente vs. De Veyra
MV Lucky Star I was unloading cargo to several small watercraft off the coast of Zambales.

• 30 nautical miles east of Scarborough Shoal

• 23 miles east of the International treaty limits
Warrant of seizure and detention was issued by the Collector of customs against the vessel for the attempted
smuggling of blue seal cigarettes into the PH.
Lower court: no jurisdiction with reference to the alleged blue seal cigarette whose forfeiture was exclusively within
the jurisdiction of the Bureau of Customs.
ISSUE: whether or not the court of first instance had jurisdiction to take cognizance of the complaint filed by the
owners for release of the vessel, while such vessel was the subject of seizure and forfeiture proceedings before the
collector of customs of the port of Sual-Dagupan.
It is well-settled that the exclusive jurisdiction over seizure and forfeiture cases vested in the collector of customs
precludes a court of first instance from assuming cognizance over such cases.
The collector of customs when sitting in forfeiture proceedings constitutes a tribunal expressly rested by law with
jurisdiction to hear and determine the subject matter of such proceedings without any interference from the court of
first instance.
 People vs. Wong Cheng
Wong Cheng was charged with illegally smoking opium aboard the merchant vessel that was anchored in Manila
Bay. – 2 and a half miles from the shores of the city.
Wong Cheng was charged with illegally smoking opium aboard the merchant vessel Changsa, an English vessel that
was anchored in Manila Bay two and a half miles from the shores of the city. The defendant filed a demurrer alleging
lack of jurisdiction on the part of the lower court, which so held and dismissed the case, hence this appeal by the
Attorney-General. The point at issue is whether the courts of the Philippines have jurisdiction over a crime, like the
one herein involved, committed aboard merchant vessels anchored in Philippine jurisdictional waters.
ISSUE: whether or not the courts of the Philippines have jurisdiction over the crime, like the one herein
involved, committed aboard merchant vessels anchored in the PH jurisdictional waters.
Two fundamental rules:
1. French rule – crimes committed aboard a foreign merchant vessel should not be prosecuted in the courts of
the country within those territorial jurisdictions they were committed, unless their commission affects the
peace and security of the territory.
- Such crimes are not triable in the courts of that country, unless their commission affects the peace and
security of the territory or the safety of the state endangered.
2. English rule – crimes perpetrated under such circumstances are rated under such circumstances are in
general triable in the courts of the country within territory committed.
- Such crimes are triable in that country, unless they merely affect things within the vessel or they refer to
the internal management thereof.
- The PH observes the English rule. – matters happening on board a merchant ship which do not
concern the tranquility of the port or persons foreign to the crew, are justiciable only by the courts of the
country to which the vessels belong.
RULING: YES There are two fundamental rules on this particular matter in connection with International Law; to wit,
the French rule, according to which crimes committed aboard a foreign merchant vessel should not be prosecuted in
the courts of the country within whose territorial jurisdiction they were committed, unless their commission affects the
peace and security of the territory; and the English rule, based on the territorial principle and followed in the United
States, according to which, crimes perpetrated under such circumstances are in general triable in the courts of the
country within whose territory they were committed. Of these two rules, it is the last one that obtains in this
jurisdiction, because at present the theories and jurisprudence prevailing in the United States on this matter are
authority in the Philippines which is now territory of the United States.
Mere possession of opium aboard a foreign vessel in transit was held by this court not triable by our courts, because
it being the primary object of our Opium Law to protect the inhabitants of the Philippines against the disastrous
effects entailed by the use of this drug, its mere possession in such a ship, without being used in our territory, does
not bring about in the said territory those effects that our statute contemplates avoiding. Hence such a mere
possession is not considered a disturbance of the public order.
But to smoke opium within our territorial limits, even though aboard a foreign merchant ship, is certainly a breach of
the public order here established, because it causes such drug to produce its pernicious effects within our territory. It
seriously contravenes the purpose that our Legislature has in mind in enacting the aforesaid repressive statute.
Criminal Law: Philippine Courts have jurisdiction over crimes constituting a breach of public order aboard a
merchant vessel anchored in Philippine jurisdictional waters.
SC: mere possession of opium aboard a foreign vessel in transit not triable by our courts. – such mere
possession is not considered a disturbance of the public order.
To smoke opium within our territorial limits even through aboard a foreign merchant ship is certainly a
breach of the public order. – causes such drug to produce its pernicious effects within our territory.
PIL: Although the mere possession of an article of prohibited use in the Philippine Islands, aboard a foreign vessel in
transit, in any local port, does not, as a general rule, constitute a crime triable by the courts of the Islands, 'such
vessel being considered as an extension of its own nationality, the same rule does not apply when the article, the use
of which is prohibited in the Islands, is landed from the vessel upon Philippine soil; in such a case an open violation
of the laws of the land is committed with respect to which, as it is a violation of the penal law in force at the place of
the commission of the crime, no court other than that established in the said place has jurisdiction of the offense, in
the absence of an agreement under an international treaty.
 United States vs. Bull
Bull was the master of a steam vessel which transported cattle and other foreign animals from a foreign port to the
port of Manila without providing suitable means in transit. – trial court was without jurisdiction to hear the case.
The offenses then were thus committed within the territorial jurisdiction of the court, but the objection to the
jurisdiction raises the question. – WHETHER THAT JURISDICTION IS RESTRICTED BY THE FACT OF THE
NATIONALITY OF THE SHIP.
Every state has complete control and jurisdiction over its territorial waters. – even public vessels may not enter the
ports of a friendly power without permission, but it is now conceded that in the absence of such prohibition such ports
are considered as open to that public ships of all friendly powers.
This limitation upon the general principle of territorial sovereignty is based entirely upon comity and convenience, and
funds its justification in the fact that experience shows that such vessels are generally careful to respect local laws
and regulations which are essential to the health, order, and well-being of the port.
Criminal Law: Offenses committed on board a foreign merchant vessel while on Philippine waters is triable
before our court. – since Philippine territory extends to 3 miles from the headlands, when a foreign merchant
vessel enters this 3-mile limit, the crew become subject to the jurisdiction of our courts. – space within 3
miles draw from headlands which embrace the entrance is within territorial waters.
 Asaali vs. Commissioner of Customs
Petitioners were owners of five vessels and cargo declared forfeited for smuggling bu the Collector of customs.
Petitioners questioned the validity of the interception and seizure by customs officials on the high seas. They
contended that importation had not yet begun and that the seizure was affected outside Philippine territorial waters.
(p.526)
CRIMINAL LAW NOTES:
Philippine courts have no jurisdiction over offenses committed on board a foreign warship in territorial
waters. – in case vessels are in the ports or territorial waters of a foreign country, a distinction must be made
between merchant ships and warships. – merchant ships are more or less subject to the territorial laws.
Aby person who committed a crime on board a Philippine ship or airship while the same is outside of the PH territory
can be tried before our civil courts for the violation of penal code. – Philippine vessels beyond 3 miles national
territory.
Warships are always reputed to be the territory of the country to which they belong and cannot be subjected to the
laws of another state. – ex. US army transport.
When Philippine vessel/aircraft is in the territory of a foreign country, the crime committed on said vessels or aircraft
is subject to the laws of that foreign country. – Philippine vessel or aircraft must be registered to the Philippine
Bureau of Customs.
 CHAPTER 8: INTERNATIONAL HUMAN RIGHTS LAW
CONCEPT OF HUMAN RIGHTS.
Human rights are the basic rights and freedoms that belong to every person in the world, from birth until
death. They apply regardless of where you are from, what you believe or how you choose to live your life.
They can never be taken away, although they can sometimes be restricted – for example if a person breaks
the law, or in the interests of national security. These basic rights are based on shared values like dignity,
fairness, equality, respect and independence. These values are defined and protected by law.
Higgins: human rights are rights held simply by virtue of being a human person. They are part and parcel of the
integrity and dignity of human being. They are thus rights that cannot be given or withdrawn at will by any domestic
legal system. – domestic legal system is not the source of the right.
International human-rights law is the source of obligation, albeit that obligation is reflected in the content of the
domestic law. It further follows that the rights will be the same in all the various jurisdiction;
International human rights law refers to the basic rights owed to individuals by states, consisting of civil, political,
economic, social, and cultural rights of a particularly high intensity. – the obligation is owed to the individual, who is
increasingly granted access to tribunals for the enforcement of these rights.

• International human rights law, the treatment of a national by his state is no longer confined to its
domestic jurisdiction, but is a matter of legitimate concern by the international community.
The very concept of human rights implies that it is a universal paradigm of dignity for the human person
characterized notably by food, shelter, free speech, free religion, and due process of law.

• The standards allow for cultural and religious diversity, as evidenced by the fact that the 1966
International Covenants (the first on civil and political rights; the second on economic, social, and
cultural rights) were adopted by states representing different political and religious systems, none of
whom entered a reservation when they become parties.
What are the human rights will depend upon whether the international human rights instruments, such as the
international covenants, are viewed as treaties, or as codifications of customary law.

• If viewed as treaties. – they are the source of human rights, but binding only for the parties. Only if the
treaty provision evolves in time into customary law, that it would bind all states.
• If viewed as codification of customary law. – state practice repeated overtime under the conviction
that it is obligatory – the treaty is not the source, but merely evidence of human rights.
SCOPE OF HUMAN RIGHTS.
It is generally accepted that human tights include civil and political rights, such as free speech, free religion, and due
process of law. By contrast, it is objected that human rights do not include economic and social rights such as food,
shelter, education, or something like paid holidays. The following objections are:
1. Poor states cannot afford to grant such rights. – economic and social rights form part of human rights,
because the test for the existence of a right is whether it has a source in international law, and not whether it
is justiciable and enforceable in the court of law.
2. Economic, social, and cultural rights are imprecise as content. – imprecise content is being confused with
uncertain obligatory scope.
 3. Economic and other rights are not rights but merely aspirations, because they cannot be immediately
delivered by states. – it assimilates civil and political rights on the one hand, with economic and social rights
on the other hand. The assimilation is misguided, while the civil and political rights require a state to abstain
from prohibited conduct, economic, and social rights require a state to take specific action, such as the
provision of food to the hungry.
The UN Committee on Human Rights has declared that economic, social, and cultural rights are human rights, and
not merely long-term aspirations. Every state has an immediate obligation to provide their rights, and to prepare a
realistic program for their delivery, including a time table.
GENERATIONS OF HUMAN RIGHTS.
First generation: political and civil rights consisting of certain individual freedoms from state interference.
Second generation: economic, social, and cultural rights, consisting of welfare benefits claimed from the state, such
as the right to work and the right to education.
Third generation: consists of collective rights, such as the right to peace, the right to self-determination, the principle
of the common heritage of mankind, the right to development, minority rights, and the right to a clean environment.
Akehurst: argues that the concept of successive generations of human rights replacing each other is
unsound because it, in effect, abolished the concept of human rights as basic rights of the individual human
being. It is entirely unclear who is supposed to be the subject and who is the addressee.
Higgins: argues that at least some third-generation rights are not rights in fact. The right to peace is not a
human right, if the test is whether the source is characterized by an authoritative nature, and by community
expectations of the existence of obligations. The so-called right to peace leaves unanswered following
questions.
RIGHT TO SELF-DETERMINATION.
Doctrine of Self Determination - Self-determination denotes the legal right of people to decide their own destiny in
the international order. Self-determination is a core principle of international law, arising from customary international
law, but also recognized as a general principle of law, and enshrined in a number of international treaties.
The right of all peoples to self-determination is one of the core principles of international law and, by virtue of its erga
omnes status, it is the responsibility of all states to ensure that this right is realised. The obstruction or violation of this
principle, particularly through the use of force, constitutes a very serious violation of international law.
The UN charter does not provide for a right of self-determination, in the sense of imposing a duty to grant
independence. In this sense, the right is the product of the law-creating process in international law.
The UN Charter, Article 1, par 2, merely provides that one of the purposes of the UN is to develop friendly relations
among nations based on respect for the principle of equal rights and self-determination of peoples.” – self-
determination is the right of the state, not of the individual.
Self-determination began to be regarded as a right of independent peoples in the 1960s with the increase of Asian
and African members. In the context of decolonization, it began to be accepted as a legal right. As a legal obligation
in the process of decolonizing, it was the subject of two General Assembly resolutions: The Declaration on
Granting Independence to the Colonial Countries and Peoples; and the subsequent resolutions passed the
next day.
Self-determination has assumed a human-rights context. This was the year when two international covenants were
concluded, under Common Article 1 which provides: “all peoples have the right to self-determination. By virtue of that
right they freely determine their political status and freely pursue their economic, social, and cultural development.”
At first, delf-determination was accepted as a legal right limited in application to the decolonizing process. It became
applicable not only to peoples under colonial rule, but also to peoples subject to foreign or alien domination, under
the 1970 UN declaration on Friendly Relations, which refers to subjection of peoples to alien subjugation, domination
and exploitation. – this clause apparently concerned South Africa as well as occupied territories upon the termination
or suspension of military hostilities.
Self-determination has graduated in meaning from independence to the free choice of people. Not only as to status,
but also as to government. However, it contemplates the existing boundaries of the state, and does not include a
demand to redraw international boundaries by minorities.
The self-determination of peoples. – refers to the entire people of the state, and not mere groupings based on race,
ethnicity, or religion. Thus minorities, they have no right to secessions, independence, or to join with comparable
groups in other states.
It bears emphasis that minorities are entitled to minority rights, such as to enjoy their own culture, to profess and
practice their own religion, and to use their own language. But minorities have no right of secession, because if the
contrary proposition is carried to its logical conclusion, there would be no end to secession, since every minority has
its own minority. – minorities are entitled to minority rights only and not to self-determination.
Self-determination is not an authorization of secession by minorities, there is nothing in international law that
prohibits secession or the formation of new states. The principle of uti possidetis provides that states accept
their inherited colonial boundaries. It places no obligation upon minority groups to stay a part of a unit that
maltreats them or in which they feel unrepresented.
The right of self-determination must follow the principle of territorial integrity. First, territorial sovereignty must be
determined; then and only then can the right of self-determination apply. This should be the sequence of event in
settling the claim to Gibraltar between the UK and Spain.
UNIVERSAL HUMAN RIGHTS.
The UN Charter provisions on human rights are weak and unaccompanied by any enforcement mechanism. The
1948 Universal Declaration of Human Rights, was only a statement of the ideal, without imposing a legal obligation.
The 1968 UN Teheran Conference on Human Rights passed a resolution stating that the Universal Declaration of
Human Rights constituted an obligation for the members of the international community.
The two 1996 international covenants came into force in 1976. There were 134 state parties to the two covenants,
which constitute binding rules of law. The only compulsory mechanism is a reporting system requiring states to
submit reports on the national human rights situation every five years.
The human rights committee can only call upon the state concerned for explanations and thereafter make
recommendations.
Under the UN Charter Article 67, the economic and social council can make recommendations on human rights, draft
conventions, and convene international human rights conferences. Under a 1967 ECOSOC resolution, the UN
Human Rights Commission has the power to examine information relevant to gross violations of human rights. It has
exercised these powers in the 1990 case of Iran, and the case of Chile under military regime.
Under 1971 ECOSOC resolution, the sub-commission on the Prevention of Discrimination and Protection of
Minorities is similarly authorized to make recommendations if a consistent pattern of gross violations of human rights
emerges after complaint on an individual petition.
This is also a UN Human Rights Commission in Geneva, and a High Commissioner for Human Rights a post created
in 1993. The high commissioner functions within the framework that the promotion and protection of all human rights
is a legitimate concern of the international community, and that all human rights – civil, cultural, economic, political,
and social – are universal, indivisible, interdependent and interrelated.
Deal with the following: genocide, racial discrimination, discrimination against women, torture and other cruel,
inhuman, or degrading treatment and rights of the child.
It is doubtful whether many of these human rights have attained the nature of customary law. Today there is no doubt
in view of the evolution of the practice of the United Nations, that at least serious human i=rights abuses may be
taken up by carious organs of the United Nations as a matter of international concern.
STATE RESPONSIBILITY.
The law of state responsibility is defined as the determination of whether there is a wrongful act for which the
wrongdoing state is to be held responsible, what the legal consequences are, and how such international
responsibility may be implemented.
An internationally wrongful act is a breach of international law resulting from a violation of a rule of customary law, or
from failure to comply with a treaty obligation. The law of state responsibility follows from the law of jurisdiction, for
jurisdiction is an entitlement to act, while responsibility is about an act that incurs obligation.
The International Law Commission Draft Articles are authoritative, although not a source of international law.
Article 1. Every internationally wrongful acct by a State gives rise to international responsibility.
Article 2. There is an internationally wrongful act of a State when:
a. Conduct consisting of an act or omission is attributable to the State under international law; and
b. That conduct constitutes a breach of international law.
TREATMENT OF ALIENS.
The law of state responsibility mainly developed as a result of cases concerning the unlawful treatment of aliens and
the minimum international standard. It is being developed on the bases of cases concerning human rights, which
prohibit the ill-treatment of all individuals, regardless of nationality.
There is no obligation on the part of state to admit aliens to their territory. But once admitted, aliens are entitled to a
minimum international standard of treatment. If aliens are outside its territory, a state may not inflict injury on such
aliens, on pain of committing a breach of international law. In the ILC vocabulary, these obligations constitute primary
rules.
When a state fails to comply with the minimum international standard, it engages international responsibility. The
national state of the injured alien may exercise its right of diplomatic protection. The national state may make a claim,
though diplomatic channels, against the other states.
The theory of state responsibility is that the claimant states itself suffers a loss, when one of its nationals is injured.
The defendant state owes duties to the alien’s national state, not to eh injured alien; and the claimant state has
complete liberty with respect to the claim, possessing even the power to keep for itself the compensation obtained.
The state retains in this respect a discretionary power the exercise of which may be determined by considerations of
a political or other nature.
ACTS IMPUTABLE TO THE STATE.
The International Law on Commission Draft Articles provides:
Article 5. The conduct of any State organ having the status under the internal law of that State shall be
considered as an act of the State concerned under international law, provided that organ was acting in that
capacity in the case in question.
Article 6. the conduct of an organ of the State shall be considered as an act of that State under international
law, whether that organ belongs to the constituent, legislative, executive, judicial or other power, whether its
functions are of an international or an internal character, and whether it holds a superior or a subordinate
position in the organization of the State.
Even if state officials exceed or disobey their instructions, the state is liable, provided that officials acted with
apparent authority, or abused their powers of facilities given by the state. The state is not responsible for acts of
private individuals. However, liability for the state is engaged, when the act of the private individual is accompanied
by some act or omission on the part of the state, as follows:
1. Encouraging individuals to attack foreigners.
2. Failing tot take reasonable care (due diligence) to prevent the individuals from making such attacks,
reasonable care depending on the circumstances.
3. Obvious failure to punish the individuals.
4. Denial of justice, or failure to provide the injured foreigner with an opportunity of obtaining compensation
from the wrongdoers in the local courts.
5. Obtaining some benefit from the individual’s act.
6. Express ratification if the individual’s act.
Tehran Hostages case: In 1979 Shah Reza Pahlevi was overthrown and Ayatollah Khomeini installed as head of
the Islamic Republic of Iran. Then demonstrators attacked the US embassy in Tehran, taking personnel and visitors
hostage for more than 14 months. Help was sought from the Iranian security forces, but they did not intervene.
In 1980, the US tried but failed a military rescue attempt. Algeria mediated the Algiers Accord which led to the 1981
Iran-US Claims Tribunal in The Hague.
The ICJ held that in the first place, the militants acted as private individuals, and Iran had no responsibility. However,
in the second place, Iran was responsible, because pf Khomeini’s public statements condoning the hostage-taking,
and the failure of the government to take steps against the militants.
MINIMUM INTERNATIONAL STANDARD.
There are two standards for the treatment of aliens:
1. Minimum international standard upheld by the US and Western European states. – consists of equal
protection of the law and due process of law. Conduct falls short of the standard, and constitutes an
international delinquency, when a state treats an alien in a manner amounting to an outrage, to bad faith, to
willful neglect of duty, or to an insufficiency of governmental action so far short of international standards
that every reasonable and impartial man would readily recognize its insufficiency.
Examples of conduct that fails to meet the minimum international standard are:
o Unlawful killing
 o Unlawful imprisonment
o Physical ill-treatment
o Looting or damage to property
o Excessive severity in maintaining law and order
o Maladministration of justice, including judicial corruption and excessive delay
o Damages for leaving a country involuntarily, due to acts of persons acting de facto on behalf of
the government.
2. National standard upheld by the Third World countries. – the national standard would mean that aliens
could vote, enter certain professions, or enjoy welfare benefits. The argument is: “if the minimum
international standard appears to give aliens a privileged position, the answer is for states to treat their own
national better, not for them to treat aliens more.”
A successor government is not responsible for the conduct of supporters of a revolution in the same way that an
existing government has no responsibility for the acts of its supporters. For state responsibility to be engaged, there
has to be an act of an agent of the revolutionary movement.
OBJECTIONS TO RESPONSIBILITY.
After the claimant state brings a case for state responsibility against the defendant state in an international tribunal,
the latter can make a preliminary objection on any of the following grounds:

• Con-compliance with rules concerning nationality of claims

• Failure to exhaust local remedies
• Waiver
• Unreasonable delay
• Improper behavior by the injured alien
The rule of nationality of claims requires that the injured national should be a national of the claimant state. – in the
absence of a special agreement, it is the bond of nationality between the state and the individual which alone confers
upon the state the right of diplomatic protection.
Nationality is the status of belonging to a state for certain purposes of international law. Each state is free to define
who are its nationals, but modern international law is increasingly stricter in restricting state discretion.

• Most states provide for acquisition of nationality by birth, marriage, adoption or legitimation,
naturalization or transfer of territory from one state to another.
• Most states also provide for loss of nationality by renunciation, acquisition of a new nationality,
deprivation, or transfer of territory.
In the case of dual or multiple nationality, the orthodox view is that the claim by one national state against another
national state is inadmissible. (rule followed by UK)
If there is a master national state – the national state with which the individual has closes ties – it can protect the
individual against the other national state. (rule followed by US)
A state cannot act as agent of an individual, if he was able to acquire its nationality, but has no genuine link with the
claimant state. The dominant and effective nationality of the claimant is decisive with regard to the admissibility of the
claim, based on factual criteria such as residence, family connections, gravity of interest, participation in public life,
etc.
The national state may also make a claim on behalf of a company. A company has the nationality of the state under
the laws of which it is incorporated, and in whose territory, it has its registered office. This rule applies, even if the
company operates in a foreign country and is controlled by foreign shareholders.
Before the claimant state can file the claim, the injured individual or company must exhaust local remedies in the
courts of the defendant state. This rule does not apply where local remedies are obviously futile. Otherwise, the rule
is applied very strictly.

• Example: there is a failure to exhaust local remedies, if the plaintiff fails to call a vital witness and fails
to appeals; or if the municipal court orders a new trial.
State responsibility in the vocabulary of the ILC entails full reparation, in the form of restitution in kind, compensation,
satisfaction, and assurances and guarantees on non-repetition, either singly or in combination.