BOOK EXTRACT – PUBLIC INTERNATIONAL LAW, PROF. H.

ROQUE

CHAPTER 3
Actors in International Law

An actor of international law is an entity of a type recognized by customary law as capable

of possessing rights and duties, capable of bringing international claims, and have these
capacities conferred upon it.

If an entity is not a subject of international law, it may still have legal personality of a very
restricted kind depending on the agreement or acquiescence of recognized legal persons.1

There are now many subjects because recognition and acquiescence may sustain an entity
which is anomalous, and yet has a web of legal relations on the international plane.

Established Legal Persons

States

States remain as subjects of international law since they are “the repositories of
legitimated authority over peoples and territories.”2

Political Entities Legally Proximate to States

These entities refer to political settlements (not sovereign states) both in multilateral and
bilateral treaties. They possess certain autonomy, fixed territory and population, and some legal
capacities on the international plane. They are like states but politically such entities are not
sovereign states. An example of this is the former Free City of Danzig. It previously had an
international personality but it lost it when it was placed under the protectorate of Poland.

Condominium

This refers to a joint exercise of State power within a particular territory by means of an
autonomous local administration. However, the local administration can only act as an agency of
the states participating in the condominium. One example is Nauru, a tripartite condominium
mandate territory administered by Australia, New Zealand, and United Kingdom from 1923 to
1942.

Internationalized Territories

Magallona, Merlin M. Fundamentals of Public International Law (2005).

1
Wolfgang Friedmann, The Changing Structure of International Law (Columbia University Press: New York, 1964)
2
 These entities are applied in cases where a special status was created by multilateral treaty
and protected by an international organization and in cases where exclusive administration of a
territory is done by an international organization or an organ thereof. An example of this is the
United Nations Transitional Administration in East Timor (UNTAET). This entity was established
by the UN Security Council in order to administer present-day East Timor prior to its
independence.

International Organizations

These organizations are required to comply with certain conditions so that they may
acquire legal personality on an international plane, and not merely as a legal person within a
particular system of national law (infra.). An example of this is the United Nations.

Agencies of States

These agents may have the appearance of enjoying separate personality. The components
of federal states probably have treaty-making capacity, where this is provided for internally, as
agents of the federal state. By agreement, States may create joint agencies with delegated powers
of a supervisory, rule-making and even judicial nature.

Agencies of Organizations

These are subsidiary organs of international organizations. They may be created by the
constituent treaty or the exercise of powers conferred by the constituent treaty. Such organs have
a significant amount of independence and are invested with considerable administrative, rule-
making and judicial powers without themselves acquiring a distinct legal personality. World
Health Organization, a subsidiary organ of the United Nations is one example of this agency.

Special Types of Personality

Non-Self-Governing Peoples

They have a special type of legal personality which depends on the principle of self-
determination. The claim to represent such non-self-governing peoples may be given recognition
by individual state action or collectively in the form of UN General Assembly resolutions.

State in statu nascendi

It is a political entity, which aspires for political independence and recognition of its status
of statehood, while statehood has yet to be realized. This assumes continuity after statehood has
been attained, and gives effect to legal acts that occur before independence. An example of this
is Palestinian Liberation Organization (PLO). It is an organization created for the purpose of
creating an independent state in Palestine. Many authors are of the opinion that in the event that
Palestinian statehood is realized, the acts of the PLO can be considered acts of a state in statu
nascendi.

Legal Constructions

A state's legal order may be projected on the plane of time for certain purposes although
politically it has ceased to exist.

Belligerent and Insurgent Communities

These refer to de facto authorities in control of a specific territory. Parastatal entities are
recognized as possessing a definite if limited form of international responsibility attributed with
treaty-making capacity.

Entities sui generis

These are entities which maintain some sort of existence on the international legal plane
in spite of their anomalous character. This anomalous character may be negated by acquiescence,
recognition, and the incidence of voluntary bilateral relations, provided no rule of jus cogens is
broken.

Examples of these entities are “The Sovereignty of the Holy See,” exile governments, and
Taiwan. The personality of the Holy See seems to rest partly on its approximation to a state in
function and partly on acquiescence and recognition by existing legal person. Evidently, a number
of states have diplomatic relation with it and it has been a party to multilateral conventions.

Similarly, exile governments are also accorded considerable powers within the territory of
most states. The legal status of these entities is consequential on the legal condition of the
community it claims to represent, which may be a state, belligerent community or non-self-
governing peoples.

Taiwan is a territory whose title is undetermined. It is inhabited and has an independent

administration. It is treated as having a modified personality, approximating that of a state.

Individuals

There is no general rule that individuals cannot be a subject of international law. However,
this implies the existence of certain capacities.3

Barcelona Traction, Light and Power Company Cases, supra4

Brownlie, Chapter 3, Principles of Public International Law (1998).

3
ICJ Reports, 141, 1970.
4
 Barcelona Traction is a holding company incorporated in Toronto, Canada for the purpose
of creating and developing electric power production and distribution systems in Spain. It
later formed subsidiary companies incorporated in either in Canada or Spain. After the First
World War, majority of Barcelona Traction’s share capital were held by Belgian nationals.
Barcelona Traction issued several sterling bonds however the servicing of these bonds were
suspended because of the Spanish Civil War. When the war ended, Spanish authorities still
refused to authorize the transfer of foreign currency necessary to resume the servicing of
the bonds. The company was eventually declared bankrupt.

Belgium then initiated an application before the ICJ against the Spanish government for
damages allegedly caused by the latter to the Belgian shareholders of Barcelona Traction.
ICJ said that Belgium did not have jus standi to sue in behalf of Barcelona Traction’s Belgian
shareholders. The acts complained of did not affect any Belgian naturalistic or juristic
person but in fact concerned a juristic entity registered in Canada. The Belgian interests in
this case were in the nature of shareholding interests.

Changes in the international arena have given birth to municipal institutions that have
transcended frontiers and play an important role in international relations, which in this
case is the corporate entity. However, since corporate entities are essentially created by
states within their domestic jurisdiction, municipal laws should be considered in resolving
disputes concerning them. Pertinent to this case, municipal law places a firm distinction
between the rights of the company and those of the shareholder. Only the company, which
was endowed with legal personality, could take action in respect of matters that were of a
corporate character. A wrong done to the company frequently caused prejudice to its
shareholders, but this did not imply that both were entitled to claim compensation.

A state could make a claim when investments (which are part of the State’s economic
resources) made by its nationals abroad were prejudicially affected in violation of its right
to have its nationals enjoy a certain treatment. However, at present, this could only be
enforced through a treaty and it was not found that there was such an instrument in force
between Belgium and Spain.

Reparations for Injuries Suffered in the Service of the UN5

By virtue of a general assembly resolution, the UN asked the ICJ to determine whether the
UN can make the ICJ to determine whether the UN can make arrangements regarding
reparations in behalf of its agents for injuries suffered in connection with their duties. They
also asked WON (IS THIS A TYPO ERROR?)they had the capacity to bring an international
claim against the responsible de jure or de facto government with regards to obtaining
said reparations for damages caused to the UN itself, the victim, and the heirs of said victim.

The UN is an international person and has the capacity to bring international claims. As an
organization UN is as an international person subject to international law. It is therefore
capable of possessing international rights and duties, including the capacity to maintain its
rights by bringing international claims. Such claim can be based on the breach of an
international obligation on the part of the member held responsible for such against the

5 ICJ Reports, 1949.

 interests of the UN itself, its administrative machine, its property and assets, and the
interests of which it is the guardian.

As regards the damages caused to the victim (UN agents), while it is not expressly stated
in the UN Charter that the organization can include such interests in their claims, the UN
is deemed to have those powers which although not expressly provided in the charter, is
conferred upon it by necessary implication as being essential in the performance of its
duties. In this case, in order to ensure the independence of the agent, which in turn ensures
the independence of the UN itself, it is essential that the agent in performing his duties
need not have to rely on any other protection other than that of the organization

Mavrommatis Case6

The Greek Republic filed a case before the ICJ alleging the refusal of the Government of
Palestine and the British Government who holds the mandate over Palestine, to recognize
the rights acquired by Mavrommatis (a Greek subject). Prior to the controversy,
Mavrommatis concluded contracts and agreements with the Ottoman authorities in regard
to concessions for certain public works to be constructed in Palestine. The dispute was in
the beginning between a private person (Mavrommatis) and a State (Britain).

Mavrommatis failed to obtain satisfaction for his claim through ordinary channels. Being a
Greek subject, the Republic of Greece took up Mavrommatis’ case and pursued reparations
in his behalf. ICJ ruled that Greece had standing to bring the present claim in the capacity
of a sole claimant.

A state like Greece can take up the case of its subjects when they are injured by acts
contrary to international law committed by another state. It can ask who said the subject
had been unable to obtain satisfaction through the ordinary channels. This is founded on
the right of Greece to ensure respect for rules of international law, a right which in this case
appears to have been violated by Britain. It should not be looked at not as a substitution
between Greece and its subject, but as an assertion of its own rights as a state. This will
lead to the conclusion that Greece is the sole claimant in this case. The court deemed as
irrelevant whether the dispute originated from a personal injury or not.

Certain Expenses of the UN7

The Acting Secretary-General of the UN wrote a letter to the President of the ICJ requesting
the latter to give an advisory opinion on the following question:

“Do the expenditures authorized in General Assembly resolutions relating to the UN

operations in the Congo undertaken in pursuance of the Security Council resolutions and
the expenditures authorized in the General Assembly resolutions relating to the operations
of the UN Emergency Force constitute ‘expenses of the Organization’ within the meaning
of Article 17, paragraph 2, of the Charter of the United Nations?“

6 PCIJ, Ser. A, No. 2, 1924.

7 IG Reports, 1962
 The President of the ICJ said “Yes, they were expenses of the organization within the
meaning of the UN charter.” Article 17, paragraph 2 states that “[t]he expenses of the
Organization shall be borne by the Members as apportioned by the General Assembly.”

The aforementioned provision refers to "the expenses of the Organization" without any
further explicit definition of such expenses and would thus lead to the interpretation that
“expenses” of any organization are the amounts paid out to defray the costs of carrying
out its purposes, in this case, the political, economic, social, humanitarian and other
purposes of the UN pursuant to its Charter.

The test is to determine the relationship of the expenditures to the purposes of the UN set
forth in Article 1 of the Charter. The purposes may be summarized as 1) goal of
international peace and security, 2) friendly relations, 3) achievement of economic, social,
cultural, humanitarian goals and respect for human rights, and 4) to be a center for
harmonizing the actions of nations in the attainment of these common ends.

When the Organization takes action which warrants the assertion that it was appropriate
for the fulfillment of one of the stated purposes of the UN, the presumption is that such
action is not ultra vires to the Organization. In fact, both national and international law
contemplate cases in which body corporate or politic may be bound by ultra vires act of
its agent as to third parties.

In this case, the financial obligations incurred by the Secretary-General of the General
Assembly pursuant to resolutions of the Security Council for the maintenance of
international peace and security (included in UN’s purposes) must be presumed to, as in
fact they did, constitute “expenses of the Organization.”

States

A State is regarded as a subject of international law in that it has “the capacity to be a

bearer of rights and duties under international law.” It possesses objective or erga omnes
personality, or that which exists wherever rights and obligations of an entity are established by
general international law.8

Primacy of States as Subjects of International Law

There is a position that States are the primary actors in international law. This view holds
that “the world is today organized on the co-existence of States, and that fundamental changes
will take place only through State action.”9

Basic Criteria for Statehood

Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States explain
that the State as a person of international law should possess the following qualifications,

Magallona, Merlin M. Fundamentals of Public International Law (2005).

8
Magallona, Merlin M. Fundamentals of Public International Law (2005) citing Friedmann (2005).
9
such as 1) a permanent population, 2) a defined territory, 3) a government, and 4) capacity to
enter into relations with other States.

As an element of the State, the government need not be a functioning government. An

example is Somalia. It is sufficient that it is organized as a government in exile. If the functionality
of a government would be required, the Philippines would cease to be a State in case it is
inundated by high tide.

State Succession

State succession occurs when one State replaces another with respect to a particular
territory, and thus involves a permanent displacement of the sovereignty of one State by the
sovereign power of the successor State.10 It also involves the “replacement of one State by
another in the responsibility for the international relations of the territory.”

Recognition

It is the act through which another State acknowledges that the political entity recognized
possesses the attributes of statehood.

Effect of Recognition

There are two theories on the nature and effect of recognition. The first is called Constructive
School. It explains that it is the act of recognition which constitutes or creates
the status of a State as a subject of law and thus gives it legal personality. The international status
of any entity is to be determined by the will and consent of already existing States. The second
theory called Declaratory theory asserts that the recognition merely confirms the acceptance by
States of the status of an entity as a State.

The practice of States and opinion of publicists indicate that the declaratory school is the
preferred approach, the prevailing view being that recognition is not an element of statehood.11
In other words, the recognition of other States to determine one’s statehood is not necessary as
it would be a violation of the sovereign equality of states as found in the UN Charter. Moreover,
an affirmative action of other States might allow them to assert dominance. Recognition by other
States is determinative, not constitutive of statehood. While recognition is no longer necessary
for a State to exist as such, it is still important because it signifies confidence among the States. It
also shows intention to have diplomatic relations.

Functions of Recognition

1. Determination of statehood

Magallona, Merlin M. Fundamentals of Public International Law (2005).

10
Magallona, Merlin M. Fundamentals of Public International Law (2005)
11
 (While not a criteria, it may have evidential effect before a tribunal in establishing
presence of statehood)
2. Condition for the establishment of diplomatic relations and the conclusion of treaties

Recognition, as a public act of a State, is an optional and political act. There is no legal
duty for such State to give another State recognition.12

Territorial Sovereignty

Territory is defined as a portion of the surface of the globe which is subjected to the
sovereignty of the State.13

The four types of regimes of territory in law are territorial sovereignty, territory not subject
to the sovereignty of any State and has a status of its own, Res nullius, and Res communis. The
first, territorial sovereignty, extends over land territory, territorial sea, the seabed and subsoil of
the territorial sea. It also includes islands, islets, rocks, and reeds. The second, consists of high seas
and the outer space which are not capable of being placed under State sovereignty. 14 Res nullius
covers the same subject matter legally susceptible to acquisition by States but not yet placed
under territorial sovereignty.

Modes of Acquiring Territorial Title

Occupation, one of the ways of acquiring territory means not the mere discovery but
effective exercise of sovereignty over a territory which is terra nullius (i.e. not under the
sovereignty of another State). Effective occupation means “continued display of authority which
involves two elements: the intention and will to act as a sovereign, and some actual exercise or
display of such authority.”15

Animus occupandi must be demonstrated and evidenced by some administrative or

political acts in relation to the territory in question and such act must be under the title of
sovereignty.16 Territories inhabited by tribes or peoples having a social and political organization
are not regarded as terra nullius, and hence may not be subject to valid occupation. An example
of this is the Western Sahara Case. 17

Moreover, a territory may be acquired through accession or accretion. This is the natural
process of land formation resulting in increase of territory18.

12 Brownlie, Chapter 4, Principles of Public International Law (1998)

13 Magallona, Merlin M. Fundamentals of Public International Law (2005) citing Oppenheim
14 Brownlie, Chapter 4, Principles of Public International Law (1998)
15 PCIJ Ser. A/B No. 53 (1933)
16 ICJ Reports 1975, p. 12 (1975)
17 Ibid.
18 Surya Prakash Sharma, Territorial Acquisition, Disputes, and International Law, (The Hague: 1997)
 In addition, transfer of title to territory from one State to another is possible when the
ceding State renounces its title to such territory. It is thus a bilateral mode of acquisition, the other
modes being unilateral. It is a derivative mode since its validity depends on the valid title of the
ceding State; the cessionary State cannot have more rights than what the ceding State possessed19

Lastly, a territory may be acquired through prescription. It refers to the acquisition of

sovereignty over a territory through continuous and undisturbed exercise of sovereignty over it
during such period as is necessary to create under the influence of historical development the
general conviction that the present condition of things is in conformity with international order.20
Four essential conditions must be met in order to carry out this type of acquisition. Firstly, the
possession must be exercised under the title of sovereign. Secondly, the process of possession
must be peaceful and uninterrupted. Thirdly, the possession must also be public, and lastly, the
prescription must endure for a certain length of time.21

The Vienna Convention and UN Charter now prohibit the use of force or conquest as a
mode of acquiring territorial sovereignty.22

Relation of State Sovereignty to the International Independence and Equality of States

From the standpoint of the national legal order, State sovereignty is the supreme legal
authority in relation to subjects within its territorial domain. This is the traditional context referring
to sovereignty as “absolute.” However, in the international sphere, sovereignty realizes itself in
the existence of a large number of sovereignties, such that there prevails in fact co-existence of
sovereignties under conditions of independence and equality.

The sovereignty of one State ends where the sovereignty of another begins. That limitation
is built into the nature of State sovereignty under international law. To conceive it as unlimited is
to negate its existence in the context of the co-existence of sovereignties, resulting in the negation
of the international community composed of juridically equal States.

State Sovereignty as defined in International Law

It is the right to exercise in a definite portion of the globe the functions of a State to the
exclusion of another State. According to the widely accepted opinion of Judge Huber in the Island
of Las Palmas case, “Sovereignty in the relations between States signifies independence. The
development of the national organization of States during the last few centuries, as a corollary,
the development of international law, has established this principle of the exclusive competence
of the State in regard to its own territory in such a way as to make it the point of departure in
settling most questions that concern international relations.”

19 2 KIAA 829 (1930)

20 Lassa Oppenheim, International Law. A Treatise. (Frankfurt: 2018)
21 Robert Jennings & Arthur Watts, Oppenheim's International Law (9th Edition): Volume 1 Peace. (Oxford: 2008)
22 Magallona, Merlin M. Fundamentals of Public International Law (2005)
 Island of Las Palmas (US vs. Netherlands)23

Las Palmas is a single, isolated island in the middle of Mindanao and East Indies (controlled
by the Netherlands). Both the United States and the Netherlands claim that the island of
Las Palmas should belong to their respective territories. The matter was submitted to
arbitration with Swiss Max Huber as arbitrator.

Netherlands has a stronger claim over Las Palmas by virtue of effective occupation.

Sovereignty signifies independence in the relations between States and independence

which, in turn, is the right to exercise the functions of a State over one’s territory to the
exclusion of all others. In case of dispute as to who should exercise sovereignty over a
given territory, the test is to determine whether there is acquisition of territory coupled
with continuous and peaceful display of sovereignty. Using the critical period technique,
the period to consider in this case is that prior to the 1898 (Treaty of Paris).
While Spain ceded its territory to the US by virtue of the Treaty of Paris, it could not transfer
to the latter rights that it did not have. It was not proven that Spain indeed had possession
and exercised sovereignty over Las Palmas therefore the US cannot claim Las Palmas as
successor to Spain. The fact that in the 16th century, international law allowed for “seeing”
without occupation as equivalent to discovery, this should be subjected to the concept of
intertemporal law which provides that while the act that creates a right is subjected to the
law in force at the time it arises, its continued existence must follow the conditions required
by the evolution of law. Therefore, said 16th century international law is qualified by 19th
century international law which requires not only discovery but also effective occupation.
Spain’s discovery merely created an inchoate title and without any external manifestation,
said title was not perfected.

US claim of contiguity was rejected, as this was inapplicable in cases of territorial

sovereignty because it is not precise and could lead to arbitrary results. In the end, this
inchoate title cannot prevail over Netherlands’ open and public display of sovereignty
which is evidence of its effective occupation over Las Palmas.

Critical Period is a judicial technique in the use or exclusion of evidence consisting of self-
serving acts of parties at a stage when it was evident that a dispute existed. Regardless of
subsequent events, the court will freeze the period of the controversy to the date when the
issue because ripe for adjudication.

Intertemporal law is a technique where different legal rules existed over a period of time,
both the rule at the creation of the right and rule at time of its existence should be applied.

Las Palmas Arbitration Revisited, H. Harry L. Roque, Jr.

Context

This is in context of the continued dispute between the Philippines and Indonesia as to
which territory Las Palmas should belong to. In 2002, amidst negotiations between the two
States, Indonesia enacted a new Baselines Law wherein it used Las Palmas as a basepoint

23 2 KIAA 829 (1930)

in drawing its archipelagic baselines. If this new law was to be followed, the Philippines will
not only lose Las Palmas but also around 15,000 square miles of archipelagic and territorial
waters which are currently defined as Philippine territory under the Treaty of Paris. Said law
is contrary to Indonesia’s former commitment to delimit the area in dispute only after
negotiations with the Philippines have concluded. Accordingly, the Baselines Law was
equivalent to an official claim to the land and territorial waters of the island. This renewed
the controversy settled in the 1928 Las Palmas Arbitration wherein the Netherlands was
declared to have superior title over the disputed territory.

Reasons Why Philippines Should Claim Las Palmas

According to the author, there are several reasons why the Philippines should claim the
area of Las Palmas. First, it is very close to the strategic axis linking the Pacific and Indian
oceans. It will enable the Philippines, possibly in cooperation with Indonesia, to establish
archipelagic sea-lanes and control, monitor and maintain surveillance of sensitive maritime
jurisdictions. Many population centers, industrial zones and ports are accessible from that
area.

Second, it is close to the critical spawning areas of economically important fish like the
yellow fin tuna. The area has also been declared as a maritime eco-region by the WWF
because of its distinct and outstanding biodiversity.

Third, the area in dispute is also a “warm pool” of the world’s oceans making it suitable
for large scale ocean terminal plants. The author also said that the aforementioned reasons,
plus the sheer amount of area that the Philippines will lose, warrant a re-examination of
the 1928 Las Palmas Arbitration which is the root of Indonesia’s claim to Las Palmas.
Criticisms Toward The 1928 Arbitration

The author cited Jessup’s criticisms of the substantive and procedural aspects of Huber’s
arbitration. According to Jessup, the use of Intertemporal Law is non-sequitur and is
without precedent. Jurisprudence abounds in international law which respects the Principle
of Acquired Rights or applies the law at the time of the creation of a right. Thus, a State’s
title over territory cannot be extinguished simply by virtue of the rise of a contemporary
norm. If this was the case, the retroactive effect of law would be highly disturbing in that
every State would have to re-examine its title to each part of its territory to determine
whether a change in the law has necessitated a reacquisition. In Spain’s case, when it
acquired Las Palmas by virtue of discovery which was valid in 16th century international
law, it already acquired a right over said territory regardless of the evolution underwent by
international law.

As to Huber’s ruling that US failed to show effective occupation, Jessup criticized this using
the Theory of Constructive Possession which provides that the possession of the whole is
tantamount to the possession of the parts of the whole. In occupying Mindanao, Spain also
occupied Las Palmas as part of the Philippine archipelago. Jessup also criticized Huber’s
rejection of the Principle of Contiguity which is actually recognized in international law and
has been prominently practiced in 1928 (time of the arbitration) especially in dealing with
a desolate, uninhabited island. This was even used by the PCIJ in deciding the Eastern
 Greenland case. Other authorities like Lauterpacht and O’Connell join Jessup in criticizing
the arbitration and Netherlands’ claim to Las Palmas.

United States’ Standing To Arbitrate

The United States’ also did not have standing to arbitrate or personality to advance a right
in the 1928 Arbitration based only on Spain’s 1898 cession of title to it. While acquiring
title through cession is a valid, the United States’ title is only as good as its predecessor. In
this case, Spain no longer had title over the Philippines in December 1898 because the
Philippines was already independent as of June 12, 1898. It already had all the elements of
a State even before the Treaty of Paris.

Non-Transferability of Arbitral Awards

As a general rule of State succession, successor States are not bound by obligations
entered into by its predecessor and they are at a complete liberty WON to undertake such
obligations since they are a completely new entity. The only exception to this would be
obligations in relation to territorial boundaries pursuant to a treaty. However, Las Palmas
was awarded to the Netherlands by virtue of an arbitration to which the Philippines was
not a party to. It is therefore not bound by Huber’s ruling. The Philippines has also never
acknowledge that it has automatically succeeded the US is said arbitration.

Conclusion

The author concluded by saying that even assuming that Indonesia’s title to Las Palmas is
indisputable pursuant to the 1928 Arbitration, this does not justify the former’s use of said
island in its 2002 Baselines Law as a base point for drawing its archipelagic baselines. This
is because Netherlands, as Indonesia’s predecessor-in-interest, never alleged in the
arbitration that Las Palmas formed part of the Indonesian archipelago. Therefore, Las
Palmas should be treated as an island independent of the Indonesian archipelago if not an
actual part of the Philippines.

Bishop Pedro Dulay et al. vs. Executive Secretary Eduardo Ermita24

The controversy arose when the government entered into Service Contract No. 38 with
Shell, Chevron and PNOC for the exploration, development, and production of petroleum
resources in the Camago-Malampaya Reservoir about 80 km off the coast of Palawan in
the West Philippine Sea. Because of this project, there arose a dispute between the national
government and the provincial government of Palawan with regard to the sharing of the
proceeds.

Palawan claims that it is entitled to a 40% of the proceeds pursuant to the Local
Government Code. It also based its claim in the assertion that the Camago-Malampaya gas
fields are located within the territorial jurisdiction of Palawan. However, according to the
national government, the area in dispute is outside Palawan’s jurisdiction and therefore it
is only the national government which is entitled to the proceeds of the contract.

24 Petitioner’s Pleading
Pres. Arroyo later issued EO 683 which provided for a Provisional Implementation
Agreement (PIA) that would allow 50% of the disputed 40% of the net government share
in the proceeds of SC 38 to be utilized for the immediate and effective implementation of
the development projects for the people of Palawan.

Petitioners assail the constitutionality of said executive order. CA dismissed their petition
so they appealed to the SC.

Arguments raised in the pleadings:

Territorial Boundaries of The Philippines Already Defined By Law

R.A. No. 3046 of 1961, As Amended By R.A. No. 5446 Of 1968 Must Govern Territorial
Boundaries Of The Philippines

The CA was wrong in dismissing their petition pursuant to the “ongoing efforts of both the
legislative and executive departments to arrive at a common position in redefining the
country’s baseline” which should not be encroached upon by judicial adjudication.
Petitioners assert that the CA itself has acknowledged that there is already an existing law
defining the country’s territory (mentioned in the heading) which is still good law and must
therefore govern the territorial boundaries of the State, not the “efforts” being undertaken
by the legislative and executive departments. Also, Article 1 of the 1987 Constitution is
another good law which already defines the metes and bounds of our national territory.

Implication of EO 683 on Philippine Claims Under UNCLOS

Since Palawan is the strong and secure anchor on which the Philippines claim to an
Extended Continental Shelf (extending up to 350 n.m. from the baseline) under UNCLOS
stands, EO 683, by saying that Camago-Malampaya is outside Palawan’s jurisdiction,
dismembers national territory because it cuts away the Philippine claim to an ECS.
According to petitioners, the oil and gas in the area are not found in the waters off Palawan
but in the continental shelf of Palawan. Accordingly, the delineation of the limits of the
country’s continental shelf will assure its sovereign rights over the petroleum, natural gas,
and other resources found in the area. An ECS means a much expanded claim to rich
natural resources in the region and a greater access to these resources.

Project to Delimit the Outer Limits of the Philippine Continental Shelf

Petitioners also mentioned the research efforts being conducted by various agencies (UP
Law Center, NIGS, etc.) to fortify the Philippine assertion to a right to an ECS in preparation
for its claim before the UN. The project has identified that the Kalayaan Group of Islands,
the Benham Rise, and the Scarborough Shoal are three areas where the possible ECS exists.
According to experts, the best way to claim an ECS is to consider the Malampaya fields and
the KIG or the Spratlys as a unified extension or a natural prolongation of the continental
shelf of Palawan. Notably, the KIG area is very promising with respect to petroleum and
natural gas.

Philippine Claim to KIG Dependent on the Camago-Malampaya Area Being Part if

Palawan’s Continental Shelf
 According to petitioners, to say that the Camago-Malampaya fields are not part of Palawan
is to say that the Philippines does not have any claim to an ECS, or much less, to an “inner”
continental shelf that is all of 200 n.m. extending seaward. In effect, it is to deny the
existence of a continental shelf appurtenant to Palawan, and such is also a surrender of
Philippine claims to sovereign rights over a large region that Filipinos have long considered
as belonging to Philippine national territory, including the KIG. This may result in the
bargaining away the Filipino people’s rightful claim to the rich marine resources in the
region, in contravention of the national interest in the integrity of the national territory as
well as the people’s right to enjoy the benefits of the natural resources of the country. This
is also violative of the Constitution.

Eastern Greenland Case25

In June 10, 1931, Norway issued a Royal Resolution declaring that it is taking possession
of certain territory (Elrik Raudes Land) of Eastern Greenland. Denmark opposed this and
the matter as to who had titled over the area in dispute was submitted to the ICJ. ICJ ruled
in favor of Denmark stating that Denmark had a stronger claim than Norway.

A claim to sovereignty based upon continued display of authority has two elements that
must be shown to exist. The first is the intention and will to act as a sovereign, and the
second is some actual exercise or display of such authority. Denmark has met these two
requirements as proven by the evidence it presented. Notably, before Norway issued its
1931 declaration, no other power disputed Danish sovereignty over the area.

There was also not enough evidence to support Norway’s position that Denmark lost
sovereignty over the disputed area by voluntary abandonment. While there was a period
wherein Denmark no longer had intercourse with Greenland, the interest in the latter was
eventually revived.

Norway’s claim that Denmark only possessed the western coast of Denmark was also
rejected. Denmark had constructive possession over Greenland regardless of Norway’s
assertion that the former’s legislative and administrative acts only concerned Danish
colonies (which were located on the western coast) because the word “Greenland” in these
acts should be given their ordinary meaning as encompassing the whole of Greenland.
Norway failed to prove otherwise.

Norway has acquiesced and was in fact in estoppel with regards to Denmark’s claim over
Greenland. Prior to the dispute, Norway’s government had on many occasions recognized
Denmark as the sovereign over Greenland. A prime example of this is the Ihlen Declaration
(mentioned in the position of the parties above).

If the area is thinly populated or unsettled, little actual exercise of sovereign rights is
sufficient. Although both sides were able to present evidence establishing their sovereignty over
the area, what won it for Denmark was the estoppel or acquiescence in the part of Norway because

25 PCIJ Ser. A/B, No. 53 (1933)

of the Ihlen Declaration. Although acquiescence is not a means of acquiring title, it is proof of a
better claim.

This case was decided five years after the Island of Las Palmas case by the PCIJ was still
headed by Max Huber. Interestingly, unlike in the Las Palmas Arbitration, Huber applied the
concept of constructive occupation in this case.

SS Lotus Case26

A collision occurred at the high seas between a French mail steamer Lotus with and a
Turkish collier Boz Kourt. The Boz Court split in half and it eventually sank, resulting to the
death of 8 Turkish nationals. The officer on board Lotus was the French Lt. Demons.

Lt. Demons was requested by Turkish authorities to go ashore three days after the incident
to give evidence regarding the matter. He was then arrested by Turkish authorities without
notice to France to ensure his criminal prosecution for manslaughter under Turkish law. He
was convicted.

The French government eventually protested the actions of the Turkish authorities and
demanded the release of Lt. Demons. Upon failure to settle the matter, they submitted the
issue to the PCIJ. PCIJ found that Turkey did not act contrary to international law.

There is no principle of international law that prohibits Turkey from exercising jurisdiction
over Demons and that there was no presumption of restriction against its acts. The court
rejected France’s contention that the territoriality of criminal laws prohibits the exercise of
one’s power outside one’s territory without a permissive rule of convention or international
custom.

There is also no general prohibition on a State to extend the application of their law outside
of their territory. This is because the territoriality of criminal law is not an absolute principle
of international law and by no means coincides with territorial sovereignty. Furthermore,
France is without basis in saying that international law prohibits proceedings by a State as
to offenses committed by foreigners based only on the nationality of the victim because
this is not the only criterion on which Turkey’s jurisdiction is based. Notably, Turkey could
also base its jurisdiction on the fact that the collision also affected Turkey’s vessel.

Even States which strictly apply the territoriality of criminal laws concede that if one of the
elements of an offense (most especially its effects) has taken place in their national territory,
the crime is to be regarded as having been committed there despite the fact that the author
of the crime was in the territory of another State at the time of the commission of the act.

The court also rejected the exclusive jurisdiction of the flag State in this case because such
principle is not universally accepted leaving the States a free hand.

This case has already been overturned by the UNCLOS in Article 97 [1], which provides for
concurrent jurisdiction of the flag State and the state of the person’s nationality in such instances.

26 PCIJ Ser. A, No. 10

Thematic Lighthouses

Lighthouses are important with regard to claims of sovereignty because their construction
and maintenance is a discharge of a State obligation to ensure safety in the seas.

Minquiers and Ecrehos Case27

The Minquiers and Ecrehos group of Islet and rocks are found in the English Channel.
Both parties contend that they have respectively an ancient or original title to the
Minquiers and Ecrehos, and that their title has always maintained and was never lost.
However, United Kingdom produced the more convincing proof of title.

UK won because of “ordinary local administration,” and its claim was able to establish
the exercise of State function of jurisdiction, administration, and legislation over the
islands.

As to the French claim that its installation of lighthouses, beacons and other navigational
aids evinces sovereignty over the island groups, the court held that “such acts can hardly
be considered as sufficient evidence of the intention of that Government to act as
sovereign over the islets; nor are those acts of such a character that they can be
considered as involving a manifestation of State authority in respect of the islets.”

Sovereignty

Over Pulau Ligitan and Pulau Sipadan (Indonesia vs. Malaysia)28

Indonesia and Malaysia lay claim over the islands of Ligitan and Sipadan. Both countries
cite treaties, colonial effectivities, and title by succession as proof of ownership. The court
ruled in favor of Malaysia because of its “effective acts of administration.”

Among other evidence presented, Malaysia’s construction of lighthouses in 1962 and

1963 was considered by the Court. While they are not usually used as an indicator of
State authority (as in the Minquiers and Ecrehos Case), they are legally relevant in the
case of small islands.

The Court rejected Indonesia’s claim that they merely tolerated the construction of the
lighthouses because they are useful for safe navigation. According to the Court, these
lighthouses are very important to people in North Borneo, and the silence of Indonesia
over this construction is highly unusual.

Eritrea-Yeman Arbitration29

27 ICJ Reports, 195 L (1953)

28 ICJ Reports 2002, P. 625 (2002)
29ICJReports, 1998
 The dispute relates to ownership over the Red Sea islands between Eritrea which claims
title by succession, and Yemen which claims title by automatic reversion and historic title.

No title by succession. Italy, Eritrea’s predecessor, did not obtain title to the territory
under the Treaty of Lausanne because it was provided that the allied powers have yet to
agree on who can claim sovereignty over the territory.

No historic title. Medieval Yemen had no concept of territorial sovereignty. Therefore,

Yemen cannot claim title by automatic reversion.

The tribunal found out that none of them presented a better claim, so it decided based
on effective occupation, since occupation is the prima facie evidence of title.

Portico Doctrine is a method by which off-shore islands can be attributed to a State’s

sovereignty. Islands near coastal States must pertain to such States.

Both parties have constructed and operated lighthouses in different islands. The
significance of these lighthouses would thus have to be considered separately, on a per
island basis.

Eritrea was found to be sovereign over the Mohabbakah islands, the Haycock islands and
Southwest Rocks owing to their proximity to the Eritrean mainland and presumption of
natural unity.

Yemen was found to be sovereign over the Zubayr group of islands and the Zuqar-
Hanish group on the balance of the evidence from the Parties regarding the exercise of
the functions of State authority.

Map Cases

Eritrea-Yemen Arbitration, supra30

As to the pre-19th century maps, Court ruled that there was no attribution of the islands
to Yemen.

Concerning the use of maps to prove Italian sovereignty during the 20th century, it
appears that official Italian cartography did not wish formally to portray the Islands as
being under Italian sovereignty in the inter-war period. However, the map evidence –
whilst supportive of and consistent with the conclusions reached – is not itself
determinative. Were there no other evidence in the record concerning the attitude or
intentions of Italy, this evidence would be of greater importance.

With regard to the UN maps, it is UN practice that its publication of maps does not
constitute a recognition of sovereign title over territory; hence, they cannot be relied
upon by either party.

30 ICJ Reports, 1998.

 Also, the Court considered the 20th century maps as tending to show the superiority of
Yemeni map evidence, and that Eritrean cartography described the islands as non-
Eritrean.

These conclusions were considered in arriving at the determinations made as to which

islands go to each party.

Preah Vihear Temple Case31

Two treaties were entered into by France and Siam which involved delimitation of certain
areas. A commission was tasked to survey the delimitation points and the final stage of
the delimitation was the preparation of maps. Siam did not possess adequate technical
means to do so, prompting it to ask French officers to do the mapping for them. The
maps were drawn by a well-known French cartographer and given wide publicity. It was
communicated to the government of Siam.

The principle of estoppel was applicable. The maps were communicated to Siam as
purporting to represent the outcome of the work of delimitation. Since there was no
reaction on the part of Siam, either then or for many years, and that France (later,
Cambodia) relied on this non-objection of Siam, Siam (later, Thailand) is estopped from
claiming otherwise. The uti possidetis juris principle is applicable as to the successor
States i.e. Cambodia and Thailand.

The Principle of Uti Possidetis Juris means that Successor States shall respect colonial
boundaries of colonial rulers.

Libya vs. Chad32

In 1955, a treaty was concluded between France and Libya. France was previously the
colonial power exercising sovereignty over Chad, while Libya was a former colony of Italy
and has just gained independence when it entered into a treaty with France. The treaty
states that the frontiers of the two territories are those that result from international
instruments in force on the date of constitution of Libya.

A territorial dispute erupted between the parties, thus they agreed to submit the matter
to the ICJ to decide upon the limits of the territories of the respective parties in
accordance with the rules of international law.

The terms of the treaty signified that the parties recognize the complete frontier between
their respective territories. No subsequent agreement, either between France and Libya,
or between Chad and Libya, has called in question the frontier in this region deriving
from the 1955 Treaty. Libya never challenged the territorial dimensions of Chad as set
out by France which is reflected by UN publications even after 1960.

The establishment of this boundary is a fact which, from the outset, has had a legal life
of its own, independently of the fate of the 1955 Treaty. Once agreed, the boundary

31 ICJ Reports, 1962.

32 ICJ Reports 1994
 stands, for any other approach would vitiate the fundamental principle of the stability of
boundaries, the importance of which has been repeatedly emphasized by the Court. In
effect, a boundary established by treaty thus achieves a permanence which the treaty
itself does not necessarily enjoy. The treaty can cease to be in force without in any way
affecting the continuance of the boundary.

The Court applied the principle of uti possidetis juris which provides that successor
States must respect the colonial boundaries of colonial rulers, and such boundaries
would survive after independence.

With respect to the fact that the treaty itself specified that it has a life of only 20 years,
the Court applied the theory of auto-limitation which states that boundaries have a life
of its own, separate from the treaty itself. A boundary established by treaty achieves
permanence which the treaty itself does not necessarily enjoy.

Anglo-Norwegian Fisheries Case, ICJ Reports Western Sahara Case33

In 1935, a Norwegian Royal Decree was enacted delimiting the Norwegian fisheries zone.
This delimitation made use of straight baselines drawn between fixed points on the
Norwegian coastal zone – a zone which includes its mainland, and the various islands,
islets and reefs, fjords and bays which comprise a distinctive archipelago known as the
“skjaergaard.”

The United Kingdom, in light of its various fishing interests in that area, protested the
delimitation, claiming that it was contrary to international law principles.

The baseline shall be determined using the straight baseline method, following the
outline of the “skjaergaard.”

The Norwegian mainland is bordered in its western sector by the "skjaergaard," which
constitutes a whole with the mainland. This being so, it is the outer line of the
"skjaergaard" which must be taken into account in delimiting the belt of Norwegian
territorial waters.

Straight baseline method is a method that consists of selecting appropriate points on

the low-water mark and drawing straight lines between them.

Following this method, there is no need to follow all of the indentations or sinuosities in
drawing the baseline. Straight baselines shall be drawn connecting appropriate points
along the skjaergaard.

It is from this line that the territorial sea shall be reckoned. In using the straight baseline
method, the Court provided the following guidelines. Firstly, the baseline must not
depart to any appreciable extent from the general direction of the coast. Secondly, the
sea areas lying within the landward side of the baseline must be closely linked to the
land domain and are internal waters. Thirdly, the economic interest peculiar to the region,
as evidenced by long usage, should be considered.

ICJReports,1975
33
 The Court also noted that the delimitation of sea areas always has an international aspect.
It cannot be dependent merely upon the will of the coastal State as expressed in its
municipal law. Although the act of delimitation is necessarily a unilateral act, the validity
of the delimitation with regard other States depends upon international law.

El Salvador vs. Honduras, with Nicaragua intervening34

The Parties, El Salvador, Honduras, and intervenor Nicaragua, were all former
administrative subdivisions (provinces) of the Spanish empire in Central America. El
Salvador and Honduras became independent States after the disintegration of the
Spanish empire in Central America. Even before their independence, Spanish Central
America had overlapping administrative boundaries. The Court was tasked to find where
the boundaries are.

The uti possidetis juris principle was applied. The Court said that if the colonial
boundaries are clear, it will not look at colonial effectivities. In this case, there are cases
of overlaps because of lack of sophisticated means for surveying.

Contemporaneous acts (belief of one that he belongs to this particular unit) are
considered because it is useless to look at effective occupation, for the territories are
subject to only one colonial rule. The Court looked at the Republic Titles submitted to
them and the subsequent acts of parties after independence, referring to post-colonial
effectivities as proof of colonial boundaries. The Court said that principle acquiescence
by recognition will also apply if a party does not object. Uti possidetis still applied to the
islands (El Tigre, Meanguera & Meanguerita) because none of them are terra nullius
which can be acquired through occupation.

Clipperton Island Arbitration35

Clipperton Island, apparently uninhabitable, is a low coral reef in the Pacific Ocean. In
1858, the French Navy, while cruising about half a mile off Clipperton, declared that the
sovereignty of the island beginning from that date belongs to Emperor Napoleon III. The
vessel didn't reach the shore and it left without leaving on the island any sign of
sovereignty. The declaration was communicated to the government of Hawaii and was
published in the journal The Polynesian of Honolulu. The island remained without
population and no administration. Later, Mexico arrived and ignored the occupation
claimed by France and hoisted their own flag. It claimed that the islands belong to it. But
France has title over the islands.

There is no proof that Spain discovered the island first and that Spain effectively
exercised such right. It presented a map but the official character of such map cannot be
affirmed. Also, proof of historic right is not supported by manifestation of sovereignty
over the island. The tribunal found that the island was terra nullius and susceptible to
occupation. Physical occupation is merely procedural to the taking of possession and is
not identical to the latter.

34 ICJ Reports, 1992

35 France vs. Mexico, 8 January 1931
If a territory is uninhabited, from the moment when the occupying State makes its
appearance there, at the absolute and undisputed disposition of that State, from that
moment the taking of possession must be considered as accomplished, and the
occupation is thereby completed. Physical occupation is not required in this case. The
published declaration of occupation was sufficient to show taking of possession and
intent to possess.