Gerona, Mara Czareanah February 24, 2012

IV – AB ISD IS 114 Public International Law

FINAL EXAM

1. Discuss the reservation/s made by the Philippines to the 1982 UN

Convention on the Law of the Sea. Why was the reservation made and was

there a protest against this made by another country?

Based on the book Introduction to Public International Law by Joaquin

Bernas, the Philippines made the following reservations:

1. The signing of the Convention be the Government of the Republic of

the Philippines shall nit in a nay manner impair of prejudice the

sovereign rights of the Republic of the Philippines under and arising

from the Constitution of the Philippines.

2. Such signing shall not in any manner affect the sovereign rights of

the Republic of the Philippines as successor to the United States of

America, under and arising out of the Treat of Paris between Spain

and the United States of America of December 10, 1988, and the

Treaty of Washington between the United States of America and

Great Britain of January 2, 1930.

3. Such signing shall not diminish or in any manner affect the rights and

obligations of the Contracting Parties under the Mutual Defense

Treaty between the Philippines and the USA of August 20, 1951, and

its related interpretative instruments; nor those under any pertinent

bilateral or multilateral treaty or agreement to which Philippines is a

party;

4. The provisions of the Convention on archipelagic passage through

sea lanes do not nullify or impair the sovereignty of the Philippines

as an archipelagic State over the sea lanes and do not deprive it of

authority to enact legislation to protect its sovereignty, independence

and insecurity;

5. The concept of archipelagic waters is similar to the concept of

internal waters under the Constitution of the Philippines, and

removes straits connecting these waters with the economic zone of

high sea from the rights of foreign vessels to transit passage for

international navigation.

These reservations were made because the provision on archipelagic waters found

in the 1982 UNCLOS conflicts with the claim of the Philippines in Article I of its

Constitution. In Article 8(2) of the UNCLOS states that: “Where the establishment of a

straight baseline in accordance with the method set forth in Article 7 has the effect of

enclosing as internal waters areas which had not previously been considered as such, a

right of innocent passage as provided in this Convention shall exist in those waters.

However, according to the Philippine Constitution, all waters connecting the islands are

internal waters. The government of the Philippines was aware of the possible conflicts,

hence they made the reservations. (Joaquin G. Bernas, 2009)

The Russian Federation made an objection or protest against the reservations made

by the Philippines. Upon ratification on March 1997, it said that it objects to any

declarations or statements made or will be made when signing, ratifying or acceding to

the Convention with articles 309 and 310 in mind. The Russian Federations says that

statements or declarations made cannot modify the legal effect of the provisions of the

Convention. (Division for Ocean Affairs and the Law of the Sea , 2011)

However, the going back to the reservation made by the Philippines, the reservation

seems to be pointless because Article 8(2) of the UNCLOS already specifies that it

pertains to “internal waters areas which had not previously been considered as such”

and the Philippine Constitution was made before the Convention.

2. Enumerate all the constitutional provisions governing our country’s foreign

policy.

There are two provisions in the Philippine Constitution that are regarded as

the most important in relation to the country’s foreign policy. They are Article II

Section 2 and Article II Section 7 of the Philippine Constitution.

Article II Section 2 states that: “The Philippines renounces war as an

instrument of national policy, adopts the generally accepted principles of

international law as part of the law of the land and adheres to the policy of peace,

equality, justice, freedom, cooperation, and amity with all nations.”

Article II Section 7 states that: “The State shall pursue an independent foreign

policy. In its relations with other states the paramount consideration shall be national

sovereignty, territorial integrity, national interest, and the right to self-determination.”

Based on the article entitled Foreign Policy Under The 1987 Philippine

Constitution, other provisions in the Philippine Constitution which govern the

Philippine Foreign Policy are:

Article II Section 8 states that: “The Philippines, consistent with the national

interest, adopts and pursues a policy of freedom from nuclear weapons in its

territory.

Article II Section 19: The State shall develop a self-reliant and independent

national economy effectively controlled by Filipinos.

ARTICLE VII Section 21: No treaty or international agreement shall be valid

and effective unless concurred in by at least two-thirds of all members of the

Senate.

ARTICLE XII Section 13: The State shall pursue a trade policy that serves the

general welfare and utilizes all forms and arrangements of exchange on the

basis of equality and reciprocity.

ARTICLE XII Section 21: Foreign loans may only be incurred in accordance

with law and the regulation of the monetary authority. Information on foreign

loans obtained or guaranteed by the Government shall be made available to

the public.

To explain these provisions further, the Philippine Foreign Service Act or the

Republic Act No. 7157 is in line with this article from the Philippine Constitution. It

commands the Department of Foreign Affairs to implement or put into action the

pillars regarding Philippine Foreign Policy which are: the preservation and

enhancement of national security, promotion and attainment of economic security,

and the protection of the rights and promotion of the welfare and interest of Filipinos

overseas. These three pillars cover the “national sovereignty, territorial integrity,

national interest, and the right to self-determination” part of the Philippine

Constitution.

The President has also come up with eight foreign policy realities. The pillars

must be addressed together with the eight realities and must be considered

together. The eight realities also cover and explain how the “…the policy of peace,

equality, justice, freedom, cooperation, and amity with all nations” from the Philippine

Constitution may be exercised and implemented.

These eight (8) pillars, according to the Department of Foreign Affairs are:

1. China, Japan and the United States and their relationship will be a determining

influence in the security situation and economic evolution of East Asia.

2. Philippine foreign policy decisions have to be made in perspective of the ASEAN;

3. The international Islamic community will continue to be important to the

Philippines.

4. The coming years will see the growing importance of multilateral and inter-

regional organizations to promote common interests.

5. As an archipelagic state, the defense of the nation’s sovereignty and the

protection of its environment and natural resources can be carried out only to the

extent that it asserts its rights over the maritime territory and gets others to

respect those rights.

6. The country’s economic policy will continue to be friendly to both domestic and

foreign direct investments.

7. The Philippines can benefit most quickly from international tourism

8. Overseas Filipinos will continue to be recognized for their critical role in the

country’s economic and social stability. (Department of Foreign Affairs , 2009 )

References:

Constitution of the Republic of the Philippines . (n.d.). Retrieved February 21, 2012, from http://www.concourt.am/armenian/legal_resources/world_constitutions/constit/philipin/philip-e.htm

Department of Foreign Affairs . (2009 , August 11). Philippine Foreign Policy . Retrieved February 21, 2012, from Department of Foreign Affairs : http://dfa.gov.ph/main/index.php/about-the-dfa/philippine-foreign-policy

Division for Ocean Affairs and the Law of the Sea . (2011, July 12 ). Oceans and Law of the Sea: Declarations and Statements . Retrieved February 21, 2012, from UN.org : http://www.un.org/depts/los/convention_agreements/convention_declarations.htm#Philippines Understanding made upon signature (10 December 1982) and confirmed upon ratification

Foreign Policy Under The 1987 Philippine Constitution. (2011, January 12). Retrieved February 21, 2012, from http://www.bukisa.com/articles/435779_foreign-policy-under-the-1987-philippine-constitution

Joaquin G. Bernas, S. (2009). Introduction to Public International Law. In Chapter 3: The Law of Treaties (pp. 35-36). Quezon City : Ateneo de Manila University .

United Nations Convention on the Law of the Sea. (n.d.). Retrieved February 21, 2012, from UN.org : http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf