Althea Eunice R.

Bermudez November 2, 2022

3ALM - 20201051

CASE STUDY: Philippine Jurisprudence

1. What are sea-use rights and how are these acquired?

As prescribed by UNCLOS III upon its ratification, sea-use rights—generally

the law on the sea—include the exercise of sovereignty over territorial waters,
sovereign rights over economic resources of the sea, seabed, and subsoil in the
exclusive economic zone as per Article 1 of the Philippine Constitution, control of its
customs, fiscal, immigration and sanitary laws and regulations in the contiguous
zone, and the right of the state to exploit oil deposits and other resources in the
continental shelf. The general rule is that State parties and signatories acquire said
rights when it comes to treaties; however, there is an exception to that rule—when
principles have become customary international law, non-members may be bound to
it.

2. What is UNCLOS? Who are the parties in the UNCLOS? Are there
limitations in the exercise of these rights among countries?

The 1982 United Nations Convention on the Law of the Sea is a multilateral
treaty or a codification of existing practices which involve the law of the sea.
UNCLOS consists of 168 states who ratified the treaty.

Yes, there are limitations. In the case of Magallona vs. Ermita, states only
acquire and lose territory by means of accretion, occupation, cessation, and
prescription.

3. Can a territory be acquired or lost by virtue of treaties?

No. In the case of Magallona v. Ermita, a territory can be acquired or lost only
by occupation, accretion, cession, and prescription. It mentioned that States do not
acquire or lose territory through the execution of multilateral treaties involving
regulations of sea-use rights or statutes regarding delimiting maritime zones but only
through the aforementioned means.

4. Did the passing of RA 9522 (as a result of UNCLOS III) effectively make
the Philippines lose its maritime territory ultimately affecting sovereign
rights?
 No. In Magallona v. Ermita, the petitioners contended that about 15,000
square nautical miles of territorial waters were lost. However, the Court ruled that by
following the basepoints mapped by RA 3046 and optimizing the location of
basepoints, there is an increase in the country’s total maritime space by 145,216
square nautical miles. Treaties do not affect the acquisition or loss of territory.

Section 2 of RA 9522 still maintains the Philippines’ claim over the KIG and
Scarborough Shoal as to sovereignty and jurisdiction. Although such islands are
outside our archipelagic baseline, they are still classified as the “Regime of Islands
under the Republic of the Philippines consistent with Article 121” of the UNCLOS.

5. Can non-signatory states in the UNCLOS be subject to its provisions?

Yes. Even if a State is not a party, if there are provisions that crystallized into
customary international law, it will be bound. In the case of Arigo v. Swift, the
respondents’ ship, which belongs to the US Navy, damaged the Shoal of Tubbataha
Reefs. The authorities on the ship were US citizens whose State did not ratify the
UNCLOS. However, it was ruled that even though the US did not ratify the UNCLOS,
it is still bound to the customary international rules on the “traditional uses of the
oceans.” Therefore, despite not being a member, the US is expected to answer their
“international responsibility” as prescribed by Article 31 of the UNCLOS.

RESEARCH: Philippine Arbitral Case versus the People's Republic of China

The Philippines argues that based on the UNCLOS, it has a claim of

sovereign rights over the West Philippine Sea, being a signatory of it. The
Philippines challenged China’s claims as they are conflicting with the 1982 UNCLOS.

China’s claims do not have any basis in law. According to China, it has
authority and control over the entire South China Sea based on its historical claims
before and during the period of its colonization and occupation by Japan. These
“historic rights” are depicted and known as the nine-dash line, which encloses the
Pratas Islands, the Paracel Islands, the Macclesfield Bank, and the Spratly Islands.
No law addresses the historical claims of China, hence, no legal basis can be
applied.

The arbitral ruling will further support the Philippines’ claim over the West
Philippine Sea insofar as it produces recognition by other parties that are signatories
in the UNCLOS since it is now part of international law. It goes to show that the
ruling, being in favor of the Philippines, gives our country the right to 200 exclusive
economic zones and we can now exercise such economic rights over the disputed
portion of the West Philippine Sea.
 Yes, it would be violative of international law, the arbitral’s ruling, and our
Constitution. The Philippines does not need consent from China in terms of the
natural resources found in the West Philippine Sea. If an implementation of joint
exploration would commence, it would not respect the decision of the tribunal in view
of international law, whereby China has zero claims over the disputed territory.
Moreover, negotiating with China for oil and gas exploration in the West Philippine
Sea will violate Philippine laws and rights, which even results in treason.

The previous administration dealt with the dispute through peaceful and
friendly means. However, as the fire starts to ignite again, Beijing still asserts
sovereignty over the West Philippine Sea. What the Philippines—specifically the
current administration—can do is sign a Code of Conduct between ASEAN and
China, without halting bilateral talks with Beijing on maritime disputes. There should
also be heightened measures and cooperation on law enforcement and fisheries
management. Given the growing risk of escalatory incidents at sea, the Philippines,
being allies with the US as well, can give rise to tensions that could affect the West
Philippine Sea. In order to establish assertiveness and continue exercising our
sovereign rights over the disputed territory, cooperation on similar issues and an
effective Code of Conduct between ASEAN and China. According to the former DFA
secretary Albert Del Rosario, Filipinos have every right to explore and develop the oil
and gas in the West Philippine Sea, including Reed Bank, without interruption or
harassment from other countries—which should be a top priority of the government.
References:

Batongbacal, J. (2018). A Closer Look at China’s Proposal for Joint Exploration with
the Philippines. Asia Maritime Transparency Initiative. Retrieved from:
https://amti.csis.org/closer-look-chinas-proposal-joint-exploration-with-philippines/ on
November 2022

Brago, P. (2022). ‘Philippines should proceed with West Philippine Sea exploration
without China’. PhilStar Global. Retrieved from:
https://www.philstar.com/headlines/2022/09/05/2207482/philippines-should-proceed-
west-philippine-sea-exploration-without-china on November 2022

Corr, A. (2017). Take Defense Treaty Action For Philippine Sovereignty In South
China Sea. Forbes. Retrieved from:
https://www.forbes.com/sites/anderscorr/2017/04/14/take-defense-treaty-action-for-p
hilippine-sovereignty-in-south-china-sea/?sh=4019feb96ed3 on November 2022

Javier, E. (2022). Rethinking the Philippines’ Deterrence in the South China Sea.
The Diplomat. Retrieved from:
https://thediplomat.com/2022/03/rethinking-the-philippines-deterrence-in-the-south-c
hina-sea/ on November 2022

Mustafa, A. (2017). Case Brief on the South China Sea Arbitration between the
Republic of the Philippines and the People’s Republic of China by the Permanent
Court of Arbitration. Research Society of International Law. Retrieved from:
https://rsilpak.org/2017/case-brief-on-the-south-china-sea-arbitration/ on November
2022

Panti, L. (2022). Philippines open to new joint energy talks with China—DFA. GMA
News. Retrieved from:
https://www.gmanetwork.com/news/topstories/nation/843362/philippines-open-to-ne
w-joint-energy-talks-with-china-dfa/story/ on November 2022