LAW OF THE SEA

CHAPTER 7
MARE LIBERUM
- is a book in Latin on International Law written by the Dutch
Jurist and Philosopher Hugo Grotius.
TWO REASONS TO SUPPORT THE DOCTRINE
OF THE 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

gentium, or res extra comercium, because it is
exhaustible and universally used.
AT PRESENT,
• The law of the high seas includes
freedom of navigation, fisheries,
scientific research, overflight and the
so-called freedom of immersion of
submarine cables and oil pipelines.
UN Conference on the Law of the
Sea (UNCLOS)
• Was held three time: in 1958, 1960,
and 1973.
• Finally, the conference adopted the
1982 UN Convention on the Law of
the Sea, which entered into force on
16 November 1994.
From the land, the three ocean
zones are:
• internal waters, territorial sea, and
high seas.

• In the high seas adjacent to the territorial sea,

coastal states claims limited rights in such areas
as the contiguous zone, exclusive fishery zone,
exclusive economic zone, and the continental
shelf.
INTERNAL WATERS
• The 1982 Convention, Article 8, para, 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
port, harbors, rivers, lakes, canals, and all
water on the landward side.
Under Article 2
• Internal waters falls 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:

• 1. When a right of innocent passage has previously
existed, as provided by Article 8, para. 2.

• 2. When a ship is seeking refuge from a storm, or is

severely damaged.
CLASSIFICATION OF FOREIGN
SHIPS:
• COMMERCIAL SHIPS – are often called merchant ships

• NON-COMMERCIAL SHIPS- are usually warships

COMMERCIAL SHIPS OR MERCHANT SHIPS

• With respect to merchant ships in internal waters, the coastal

state may apply and enforce its laws in full, even for pollution
offenses 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. However, 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.
NON-COMMERCIAL SHIPS OR WARSHIPS

• With respect to 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 the shore, if the crew were in uniform and on official
business at the time of the crime.
• But this immunity of the warship may be waived by the
flag state.
TERRITORIAL SEA
• 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.”

• 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, PARA. 1

• Provides that the coastal state exercises sovereignty over

its territorial sea. This includes the exclusive right to fish,
and to exploit the resources of the seabed and subsoil of
the territorial sea. It also includes the exclusive right to
enjoy airspace above its 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.
INNOCENT PASSAGE
• Refers to the passage by foreign ships which is not prejudicial to the
peace, good order, or security of the coastal state.

• 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 “traits which are used for
international navigation between on epart 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.
ARCHIPELAGOS
Is defined as a “group of islands, including parts 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.

An archipelagic state, is is defined as a “state constituted

wholly by one or more archipelagis and may include other
islands.”
THERE ARE 14 ARCHIPELAGIC
STATES:
• Bahamas, Cape, Verde, Comaros, Fiji,
Indonesia, Maldives, Mauritius, Papua
New Guinea, Philippines, Sao Tome and
Principe, Seychelles, Solomon Islands,
Trinidad and Tobago and Vanuatu.
An archipelagic state has the right to employ
straight baselines provided they shall:
• Not depart to any appreciable extent from the
general configuration of the archipelago.

• The waters enclosed by the straight baseline are

known as archipelagic waters.
State sovereignty over archipelagic
waters are subject to two limitations:
1. The right of innocent passage for ships of
all states.

2. The right of archipelagic sea lanes

passage through the routes normally
used for international navigation.
Under customary law,
• A straight baelines is also drawn across the mout of a bay
and the width of the territorial sea is measured from
such lines.

• Under the 1982 Convention , Article 10, the maximum

permissible length of the baseline is 24 miles. However,
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 Fonseca case,
• The historic bay was 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 three countries,
but excluding the existing three-mile belt
held under the exclusive sovereignty of
each state.
EXCLUSIVE ECONOMIC ZONE
• The 1982 Convention, Article 33, para 2 provides: “The
contiguous zone may not extend beyond 24 nautical miles
from the baselines from which the breadth of the territorial
sea is measured”

• 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 .

• Within the Zone, under Article 58 other states are

entitled to the freedom of high seas, notably led by the
freedom of navigation, overflight, and the laying of
submarine cables and pipelines.
CONTINENTAL SHELF
• The 1982 Convention, Article 76, para. 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
Under Article 77
• The coastal state has sovereignty right over the
shelf for the exploration and exploitation of
natural resources.

-This rights are exclusive in the sense that of

they are not exercised by the coastal state,
its express consent is required by other
states who wish to do so instead. The right
do not depend on occupation or any
express proclamation.
Article 83
• Which provides that delimitation “shall be affected by
agreement on the basis of international laws in order to
achieve an equitable solution.”

• In the Gulf of Maine case, the court restated the two

principles of customary law governing maritime delimitation:
• FIRST, delimitation can be effected by agreement between the
parties, if necessary with the aid of third parties, but it should
not be unilateral.

• SECOND, delimitation is to be effected by the application of

equitable criteria and by the use of practical methods capable
of ensuring, with regard to the geographic configuration of
the area and other relevant circumstances, an equitable
result.
The ICJ has enumerated the factors that should be
taken into consideration in the delimitation of the
continental shelf
• 1. The general configuration of the coasts to the parties,
their oppositeness, and their relationship to each other
within the general context.

• 2. The disparity in the lenghts of the relevant coasts of

the parties and the distance between them.

• 3. The need to avoid in the delimitation anu excessive

disproportion between the extent of the continental
shelf areas appertaining to the coastal state and the
length of the relevant part of its coast, measured in the
general direction of its coastlines.
HIGH SEAS
Article 86 : Apply to all part 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 the archipelagic waters of an archipelagic State.

Article 87: the high seas is governed by the Convention and other rules
of international law. As previously noted, such freedom includes:
Navigation, Overflight, Laying of submarine cables and pipelines,
Construction of artificial islands and other installations permitted
under international law, fishing, scientific research, and naval
exercises.

Article 88: the high seas shall be reserved for peaceful purposes.
JURISDICTION ON THE HIGH SEAS
• Article 90: every state has the right to sail on the high
seas ships flying its flag.

• 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.

• Article 92: ships may sail under the flag of one state only,
and are subject to the exclusive jurisdiction of that state
on the high seas.
EXCEPTIONS TO FREEDON OF HISH SEAS

• 1. Right of Visit –a warship has a right of visit where the ships

engaged in unauthorized broadcasting. (Article 110)

• 2. Piracy – any State may seize a pirate ship or aircraft on the high
seas or on terra nullius and over the person and seize the property
on board.
• Under Article 101, piracy consists of:
• (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).
EXCEPTIONS TO FREEDON OF HISH SEAS

• 3. The Slave Trade – every state shall take effective

measures to prevent and punish the transporat of slaves
in ships authorized to fly its flag and to prevent the
unlawful use of its flag for that purpose. (Article 99)

-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. (Article 110)
EXCEPTIONS TO FREEDON OF HISH SEAS
• 4. Unauthorized Broadcasting- All States shall cooperate in the suppression of
unauthorized broadcasting from the high seas. For the purposes of this Convention,
"unauthorized broadcasting" means the transmission of sound radio or television
broadcasts 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. (Article 109)

• 5. Hot Pursuit- The hot pursuit of a foreign ship may be undertaken when the
competent authorities of the coastal State have good reason to believe that the ship
has violated the laws and regulations of that State. Such pursuit must be commenced
when the foreign ship or one of its boats is within the internal waters, the archipelagic
waters, the territorial sea or the contiguous zone of the pursuing State, and may only
be continued outside the territorial sea or the contiguous zone if the pursuit has not
been interrupted. It is not necessary that, at the time when the foreign ship within
the territorial sea or the contiguous zone receives the order to stop, the ship giving
the order should likewise be within the territorial sea or the contiguous zone. If the
foreign ship is within a contiguous zone, as defined in article 33, the pursuit may only
be undertaken if there has been a violation of the rights for the protection of which
the zone was established. (Article 111)
EXCEPTIONS TO FREEDON OF HISH SEAS

• 6. Collisions –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. (Article 97)

• 7. Treaty Rights – the right to stop and ascertain the

nationality of merchant ships that were suspected of
violating the Convention.
INTERNATIONAL SEABED
• Under the 1982 Convention, Article 1, Area means the seabed and
ocean floor and subsoil thereof, beyond the limits of national
jurisdiction.

• Thus, the area start 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 Articles 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.
Baselines law
Philippine Ship in Foreign Port
Foreign Ship in Distress
Constitutionality of the 2009 Philippine
Archipelagic Baselines Law

Magallona v. Ermita 655 SCRA 476 (2011)

RA 3046 was passed in 1961 which provides among others the demarcation lines of the
baselines of the Philippines as an archipelago. This is in consonance with UNCLOS I.

RA 5446 amended RA 3046 in terms of typographical errors and included Section 2 in which
the government reserved the drawing of baselines in Sabah in North Borneo.

RA 9522 took effect on March 2009 amending RA 5446. The amendments, which are in
compliance with UNCLOS III in which the Philippines is one of the signatory, shortening one
baseline while optimizing the other and classifying Kalayaan Group of Island and
Scarborough Shoal as Regimes of Island.

Petitioners in their capacity as taxpayer, citizen and legislator assailed the constitutionality
of RA 9522:- it reduces the territory of the Philippines in violation to the Constitution and it
opens the country to maritime passage of vessels and aircrafts of other states to the
detriment of the economy, sovereignty, national security and of the Constitution as well.
They added that the classification of Regime of Islands would be prejudicial to the lives of
the fishermen.
ISSUE: Whether or not RA
9522 is unconstitutional
• The Court finds R.A. 9522 constitutional. It is a statutory tool to
demarcate the country’s maritime zones and continental shelf
under UNCLOS III, not to delineate Philippine territory. It is a vital
step in safeguarding the country’s maritime zones. It also allows an
internationally-recognized delimitation of the breadth of the
Philippine’s maritime zones and continental shelf.

• RA 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 Philippines’ claim of sovereignty over these
areas
 Extent of maritime area Extent of maritime area
using RA 3046, as using RA 9522, taking
amended, taking into into account UNCLOSE III
account the Treaty of (in square nautical miles)
Paris’ delimitation (in
square nautical miles)

Internal or archipelagic 166, 858 171,435

waters
Territorial Sea 274,136 32,106

Exclusive Economic Zone 382,669

TOTAL 440,994 586,210

Second, the classification of KGI and Scarborough Shoal as Regime of Islands is
consistent with the Philippines’ sovereignty. Had RA 9522 enclosed the islands as
part of the archipelago, the country will be violating UNCLOS III since it
categorically stated that the length of the baseline shall not exceed 125 nautical
miles.

Third, the new base line introduced by RA 9522 is without prejudice with
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 acquired
dominion and sovereignty.

And lastly, the UNCLOS III and RA 9522 are not incompatible with the
Constitution’s delineation of internal waters. The Court emphasized that the
Philippines exercises sovereignty over the body of water lying landward of the
baselines, including the air space over it and the submarine areas underneath,
regardless whether internal or archipelagic waters. However, sovereignty will not
bar the Philippines to comply with its obligation in maintaining freedom of
navigation and the generally accepted principles of international law. It can be
either passed by legislator as a municipal law or in the absence thereof, it is
deemed incorporated in the Philippines law since the right of innocent passage is
a customary international law, thus automatically incorporated thereto.
PHILIPPINE SHIP IN FOREIGN PORT

• Wildvalley Shipping Co., Ltd v. Court of Appeals 342 SCRA 213 (2000)

• The Philippine Roxas, a vessel owned by Philippine President Lines, Inc., private
respondent herein, arrived in Puerto Ordaz, Venezuela, to load iron ore. Upon the
completion of the loading and when the vessel was ready to leave port, an official pilot
of Venezuela, was designated by the harbour authorities in Puerto Ordaz to navigate the
Philippine Roxas through the Orinoco River. The Philippine Roxas experienced some
vibrations when it entered the San Roque Channel. The vessel proceeded on its way, with
the pilot assuring the watch officer that the vibration was a result of the shallowness of
the channel. The master (captain) checked the position of the vessel and verified that it
was in the centre of the channel. The Philippine Roxas ran around in the Orinoco River,
thus obstructing the ingress and egress of vessels. As a result of the blockage, the
Malandrinon, a vessel owned by herein petitioner Wild valley Shipping Company, Ltd.,
was unable to sail out of Puerto Ordaz on that day. Subsequently, Wild valley Shipping
Company, Ltd. filed a suit with the Regional Trial Court of Manila, Branch III against
Philippine President Lines, Inc. and Pioneer Insurance Company (the underwriter/insurer
of Philippine Roxas) for damages in the form of unearned profits, and interest thereon
amounting to US $400,000.00plus attorney's fees, costs, and expenses of litigation.
 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. For a copy of a foreign public document to be admissible, the following requisites are
mandatory:
(1) It must be attested by the officer having legal custody of the records or by his deputy; (2) It
must be accompanied by a certificate by a secretary of the embassy or legation, consul general,
consul, vice consular or consular agent or foreign service officer, and with the seal of his office.
The latter requirement is not a mere technicality but is intended to justify the giving of full faith
and credit to the genuineness of a document in a foreign country. With respect to proof of
written laws, parol proof is objectionable, for the written law itself is the best
evidence. According to the weight of authority, when a foreign statute is involved, the best
evidence rule requires that it be proved by a duly authenticated copy of the statute. At this
juncture, we have to point out that the Venezuelan law was not pleaded before the lower court.
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.
A review of the Complaint revealed that it was never alleged or invoked despite the fact that the
grounding of the M/V Philippine Roxas occurred within the territorial jurisdiction of Venezuela.
We reiterate 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 processual presumption.
FOREIGN SHIP IN DISTRESS
• United States v. Look Chaw 18 Phil. 573 (1910)
• Between 11 and 12 o'clock a.m. in August 19, 1909, the Port of Cebu and internal revenue agent
of Cebu, respectively, went aboard the steamship Erroll to inspect and search its cargo, and found
two sacks containing opium. The defendant stated freely and voluntarily that he had bought these
sacks of opium in Hong Kong with the intention of selling them as contraband in Mexico or Vera
Cruz, and that as his hold had already been searched several times for opium he ordered two
other chinamen to keep the sack. All the evidence found properly constitutes corpus delicti.

It was established that the steamship Erroll was of English nationality, that it came from Hong
Kong, and that it was bound for Mexico, via the call ports in Manila and Cebu.

Issue: Whether or not courts of local state can exercise its jurisdiction over foreign vessels
stationed in its port.

Held: Yes. The Philippine courts have jurisdiction over the matter. The mere possession of a thing
of prohibited use in these Islands, aboard a foreign vessel in transit, in any of their ports, does not,
as a general rule, constitute a crime triable by the courts of this country, on account of such vessel
being considered as an extension of its own nationality. However, the same rule does not apply
when the article, whose use is prohibited within the Philippines, in the present case, a can of
opium, is landed from the vessel upon the Philippine soil, thus committing an open violation of
the penal law in force at the place of the commission of the crime. Only the court established in
the said place itself has competent jurisdiction, in the absence of an agreement under an
international treaty.
 Foreign Ship in Distress
Okamoto Vs. Collector of Customs 60 Phil. 218 (1934)

Foreign Ship in Local Port

United States Vs. Look Chaw 18 Phil. 573 (1910)

Foreign Ship in Neutral Port During War

Compagnie de Commerce Vs. Hamburg America (1917)

Jurisdiction in Internal Waters

Calme Vs. Court of Appeals 261 SCRA 285 (1996)

Jurisdiction in Territorial Waters

De La Fuente Vs. De Veyra 120 SCRA 451 (1983)
People Vs. Wong Cheng 46 Phil. 729 (1922)

Jurisdiction on the High Seas

Asaali Vs. Commissioner of Customs 26 SCRA 382 (1968)
R.A. No. 9522 Philippine Archipelagic Baseline Act of 2009
“AN ACT TO AMEND CERTAIN PROVISIONS OF REPUBLIC ACT NO. 3046, AS AMENDED BY 
REPUBLIC ACT NO. 5446, TO DEFINE THE ARCHIPELAGIC BASELINE OF THE PHILIPPINES AND
FOR OTHER PURPOSES”
Section 2. The baseline in the following areas over which the Philippines likewise exercises
sovereignty and jurisdiction shall be determined as "Regime of Islands" under the Republic of the
Philippines consistent with Article 121 of the United Nations Convention on the Law of the Sea
(UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596; and
b) Bajo de Masinloc, also known as Scarborough Shoal.

ASEAN INSTRUMENT
2002 Declaration on the Conduct of Parties in the South China Sea
Adopted by the Foreign Ministers of ASEAN and the People’s Republic of China at the 8 th ASEAN
Summit in the Phnom Penh Cambodia on Nov. 4 2002
The Government members of the States of ASEAN and the Government of the People’s Republic
of China,
Reaffirming their determination to consolidate and develop the friendship and cooperation
between their people and governments…XXX
Cognizant of the need to promote a peaceful, friendly and harmonious environment in the South
China Sea between ASEAN and China…XXX
Committed to enhancing the principles and objectives of the 1997 Joint Statement of the
Meeting of the Heads of State/Government of members State of ASEAN and China
Desiring to enhance favourable conditions for a peaceful and durable solution of differences and
disputes among countries