PUBLIC INTERNATIONAL LAWI. IN GENERAL

How is international law defined in the light of developments in international legal relations since the end of the Second World War?International law is a body of legal principles, norms and processes which regulates the relations of States and other international persons, and governs their conduct affecting the interests of the international community as a whole.

II. SOURCES OF INTERNATIONAL LAW

In general, how do norms of international law come into being? They are created by States through definite norm- creating methods accepted or recognized by them as means of expressing their consent as to the binding effect of those norms. Hence, international law is based on their normative consent.

The methods of creating or recognizing norms are referred to as sources of law. By means of treaty or convention and custom, States create or recognize norms as binding law. Norms created by treaty are on the whole called conventional international law; those by custom are called customary international law.

Primary Sources (TCG)1. treaty – consent freely given is the legal basis for the binding effect;

Treaty is an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. (Vienna Convention on Treaties)

2. customary international law – consent whether or not freely given by a STATE; Yamashita v Styer: binding effect of customary law is accepted, recognized, and consecrated by all

civilized nations of the world Paquete Habana: Ancient usage among civilized nations, beginning centuries ago, and gradually ripening

into international law, coast fishing vessels are exempt from being captured as prize of war.

Elements: *absent any one element, there is no customary norm a. State practice – extensive/widespread and virtually uniform without being unanimous

North Sea Continental Shelf: State practice must be “both extensive and virtually uniform”. Passage of time is not material. Equidistance principle is not customary law.

Asylum Case of Haya dela Torre: General practice as “constant and uniform usage practised by States in question.” Columbia has not shown that such a practice of unilateral and definitive qualification in asylum cases.

Some degree of uniformity is required. (Anglo- Norwegian case)

- But in any event, universality of practice is not required.- Repetition of practice or actions of states is necessary.

b. Opinio juris (sive necessitatis) – recognition of the practices that are legally binding

Art. 38, ICJ Statute:1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;c. the general principles of law recognized by civilized nations;d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified

publicists of the various nations, as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

States create law by what they do in practice or by their conduct. Opinio Juris means that in doing so, they must believe that the practice or conduct is obligatory. They do so for the reason that the practice is required by law, and not merely because of courtesy or political expediency.

Legality of the Use of Nuclear Weapons: UN General Assembly Resolutions are generally recommendations, without any binding effect. However, such resolutions may nonetheless be an evidence of state practise and opinio juris that is relevant in the development of custom.

Opinio juris may be:1. General – binding upon all or most states2. Particular – binding between only two or a few states

*ICJ has recognized regional custom and bilateral custom (Right of Passage over Indian Territory) Passage Case (Portugal v India): The constant and uniform practice between two states is

a source of IL. It is difficult to see why the number of states between which a local custom may be established on the basis of long practice must be larger than two. (Custom between parties to grant right of passage to civilians and civil officials, but not to military men)

3. general principles of law – domestic/municipal law w/c need not be recognized by all countries but by the major legal traditions

- accepted by peace-loving countries; need not be recognized by all countries necessary that they are recognized by major legal tradition

- does not need to be supported by state practice that is consistent and virtually uniform, it being sufficient that such principle is found in a number of legal jurisdictions

Preah Vihear Case (Thailand v Cambodia): principle of estoppel was applied against Thailand when it failed to object and in fact benefited from the map produced by the Treaty of 1904 between it and France, the predecessor of Cambodia. (Elements of estoppel: act or representation, reliance, damage)

Corfu Channel (UK v Albania): circumstantial evidence is admitted as indirect system of law and its use is recognized by international decisions. (Circumstantial evidence: Albania’s attitude before and after the catastrophe, and the possibility of observing the mine laying)

Chorzow Factory Case (Germany v Poland): principle of reparation for damage caused as a result of a unlawful act. Reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would have existed if the act had not been committed. If restitution is not possible, payment of sum of money(compensation) corresponding the extent of the damage should be done.

Barcelona Traction, Light and Power Company (Belgium v Spain): principle that a corporation has a juridical personality distinct from its shareholders. Belgian shareholders, represented by Belgium, cannot file a claim because the real party in interest is the corporation, incorporated under Canadian law.

BP v Libya: specific performance does not lie against a state and the sole remedy for a State’s breach is damages

Subsidiary Sources1. Judicial decisions –

Decision of national courts merely subsidiary. They may be regarded as evidence of norms of international law. They are means by which rules may be verified. EVIDENCE OF LAW.

Decisions of international courts have no stare decisis. Decisions are binding only to the parties in the case. They exercise considerable influence as impartial and well-considered statements of law by qualified jurists made in light of actual problems

2. Publicists – writings of highly qualified publicists

Other sources a. Ex aequo et bono – court may apply this standard of “what is equitable and good” to decide a case

when the parties to the dispute so agree

b. Equity – application of standards of justice that are not contained in the letter of existing law

c. Unilateral declarations – binding to the State that makes them Nuclear Test Cases (France v NZ and AUS): When it is the intention of the State making

the declaration that it should be bound, that intention confers on the declaration the character of a legal undertaking. An undertaking given PUBLICLY and WITH INTENT TO BE BOUND, though not made in context of international negotiations is binding. (France’s declarations contained in Communique, a Note, and a television interview.

Eastern Greenland Case (Norway v Denmark): Declaration of Foreign Affairs Minister M. Ihlen regarding the title of Denmark to Greenland debarred Norway from later repudiating such declaration.

d. United Nations General Assembly Resolutions Legality of the Use of Nuclear Weapons: UN General Assembly Resolutions are generally

recommendations, without any binding effect. However, such resolutions may nonetheless be an evidence of state practise and opinio juris that is relevant in the development of custom.

Texaco v Libya: The legal value of resolutions is to be determine on the basis of the circumstances under which they were adopted. ICJ looked into voting patterns to determine binding nature of UN GA resolutions. (Sir Roque says there must be proof of state practice and opinion juris.) Voting patterns maybe considered as evidence of customary international law.

e. Codification done by the International Law Commission(ILC)

Overlap Between Treaty and Custom In such a case, even non-signatories to the treaty or convention will be bound by the norm

Kuroda v Jalandoni: Even if the RP was not a signatory of the Hague and the Geneva Conventions then, provisions in these treaties form art of and are wholly based on customary law. They form part of the law of our nation

Nicaragua v US: Even if treaty and customary law overlap, the treaty does not deprive the customary law of its applicability as distinct from that of a treaty norm. They are different in their applicability and methods of interpretation. In treaty law, failure of one state from following the rule may justify the other state’s failure to follow the same. However, the same cannot be said for customary law.

When Treaty Obligation Crystallized to a Customary Norm North Sea Continental Shelf: the provision should, at all events be of fundamentally norm-creating

character; passage of time is immaterial in the formation of customary IL so long as there is extensive and virtually uniform practice .

OTHER CONCEPTS

What is a jus cogens norm?Jus cogens or peremptory norm is a norm which States cannot derogate or deviate from in their agreements. It is a mandatory norm.

Example: customs outlawing slavery, genocide and terrorism

Erga Omnes Obligations: International obligations of such character and importance that their violation by any state allows any other state to invoke the violator’s liability, even if one state or only a few incurred direct damage. Jus cogens are obligations erga omnes.

Southwest Africa: (apartheid) ICJ refused to hear case because no legal dispute. Sacred trust in civilization is not a source of legal interest or right. (Obliterated since fundamental equality is now considered as erga omnes)

Barcelona Traction Light and Power

Martens Clause

Article 53, 1969 Vienna Convention on TreatiesTreaties conflicting with a peremptory norm of general international law (“jus cogens”)- A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

(Hague Convention II) "In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience."

International Humanitarian Law is jus cogens and its enforcement erga omnes.

III. Actors in International Law- Entities capable of possessing international rights and duties and having the capacity to maintain these rights in

bringing international claim- Include:

1. States2. International Organizations

Reparations for Injuries Suffered in the Service of the UN case: UN has capacity to bring an international claim against a State which has caused injury to any UN agent. Not only the State of the agent can bring the claim, also UN! UN has international personality as evidenced by UN charter, practice and convention. UN’s capacity is dependent upon its purposes and functions, unlike a state which is the totality of international rights and duties recognized by IL. UN has capacity to exercise functional protection to its agent.

3. Individuals

A. States

Elements:1. People – an aggregate of individuals of both sexes who live together as a community despite racial or cultural

differences. Although no minimum number is provided, they should be permanent and sufficient to maintain and perpetuate themselves

2. Territory – the area within which the State exercises control need not be exactly defined by metes and bounds, so long as there is reasonable certainty of identifying it.

3. Government – physical manifestation of a state. It must be organized, exercising control over and capable of maintaining law and order within its territory. Changes in the government do not affect the personality and identity of the state. It could be government de jure or de facto.

4. Sovereignty - exercise of all powers and authority emanating from a State. It is the capacity to enter into relations with other state free from outside control in conducting its affairs.

Recognition- Act by which a state acknowledges the existence of another state, government of belligerent community and

indicates its willingness to deal with the entity as such under rules of international law- Divergent theories on recognition

o Declaratory – merely affirms an existing fact, possession of state of essential elements o Constitutive – recognition is an element of statehood

State May Bring a Claim in behalf of its Subjects Mavrommatis Case (Greece v UK): A state has capacity to bring claims of its subjects from acts contrary to law

committed by another state to them when they are unable to obtain satisfaction through the ordinary channels. WON the dispute originates in a personal injury is irrelevant. Greece is not substituting itself with its citizen, but is actually asserting its own rights.

Barcelona Traction, Light and Power Company Case: State of a company is authorized to exercise diplomatic protection for the purpose of seeking redress

1. Territorial Sovereignty - The right to exercise in a definite portion of the globe the functions of a State to the exclusion of another state. - “Sovereignty in the relations between states signifies independence. Independence in regard to a portion of the

globe is the right to exercise therein to the exclusion of any other State, the functions of a State. The development of the national organization of States during the last few centuries, and, as a corollary, the development of international law, have established this principle of the exclusive competence of the State in regard to its own

ART. 1, Montevideo Convention on the Rights and Duties of States:The state as a person of international law should possess the following qualifications:a ) a permanent population; b ) a defined territory;c ) government; and d) capacity to enter into relations with the other states.

territory in such a way as to make it the point of departure in settling most questions that concern international relations.” (Judge Huber, Island of Las Palmas)

- Sovereignty in international law as the sovereignty of one State in relation to the sovereignty of another State in conditions of co- existence. Sovereign equality between states

- Exception: When the State willingly restricts the exercise of its sovereignty Example – military bases agreement

Portico Doctrine: Method by which all islands can be attributed to a State’s sovereignty. Islands near the coastal state pertains to that coastal state. (Eritrea v Yemen)

Island of Las Palmas Case (US v. Netherlands): Territorial sovereignty, defined. Sovereignty in relation to territory is called “territorial sovereignty.” Sovereignty in the relations between States signifies independence. Independence, in regard to a portion of the globe, is the right to exercise therein, to the exclusion of any other State, the functions of a State. Principle of the exclusive competence of the State in regard to its own territory, to the exclusion of all others.

Disputes how resolved. If a dispute arises as to the sovereignty over a portion of territory, it is customary to examine which of the claiming States possesses a title—cession, conquest, occupation, etc.—superior to that advanced by the other State. However, if the contestation is based on the fact that the other Party has actually displayed sovereignty, it cannot be sufficient to establish the title by which TS was validly acquired at a certain moment; it must also be shown that the TS has continued to exist and did exist at the moment which, for the decision of the dispute, must be considered critical. This demonstration consists in the actual display of State activities, such as belongs only to the territorial sovereign.

Acquisition of title. Titles of acquisition of TS in present-day international law are either based on an act of effective apprehension, e.g. occupation or conquest; or, like cession, presuppose that the ceding and the cessionary Powers or at least one of them have the faculty of effectively disposing of the ceded territory. The continuous and peaceful display of TS (peaceful in relation to other States) is as good as a title.

Continuous and peaceful display of sovereignty. Manifestations of TS assume different forms, according to time and place. Although continuous in principle, sovereignty cannot be exercised in fact at every moment on every point of a territory. The intermittence and discontinuity compatible with the maintenance of the right necessarily differ according as inhabited or uninhabited regions are involved, or regions enclosed within territories in which sovereignty is incontestably displayed or again regions accessible from, e.g., the high seas.

State authority need not necessarily be displayed “in fact at every moment on every point of a territory”.

Intertemporal law. Where different legal systems prevailing at successive periods, distinction must be made between the rules existing at the creation of rights and the rules during its exercise. Both the rule at the creation of a right and at the time of its exercise must be applied.

Discovery is not enough, only an inchoate title.Discovery does not create a definitive title of sovereignty but only an “inchoate” title, such a title exists, it is true, without external manifestation. An inchoate title of discovery must be completed within a reasonable period by effective occupation. An inchoate title could not prevail over the continuous and peaceful display of authority by another State; for such display may prevail even over a prior, definitive title put forward by another State.

Critical Date. A judicial technique in the use of evidence and more especially in the exclusion of evidence consisting of self-serving acts of parties at a stage when it was evident that a dispute existed.

Principle of contiguity.Theory that islands relatively close to states’ shores belonged to them in virtue of their geographical situation. It is impossible to show the existence of a rule of positive international law to the effect that islands situated outside territorial waters should belong to a State from the mere fact that its territory forms the terra firma (nearest continent or island of considerable size).

Las Palmas Arbitration Revisited, H. Harry L. Roque, Jr.: Critique and Jessup’s viewsIntertemporal law. If applied, every State would constantly be under the necessity if examining its title to each portion of its territory in order to determine whether a change in the law as necessitated a reacquisition.

Constructive Possession. Possession of the whole constructively means possession of all its parts. Since Spain possessed the whole island of Mindanao, Palmas was also constructively possessed. Failure to appreciate the doctrine of “constructive possession of the hinterlands and ignore the concept of an archipelago (group of islands interconnecting with waters and other natural features which are so closely interrelated that such islands, waters

or natural features form an intrinsic, geographical, political and economic entity, or which historically have been regarded as such.

Theory of Contiguity.

Eastern Greenland Case(Norway v Denmark): Constructive Possession. A claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involves two elements each of which must be shown to exist: the intention and will to act as sovereign ( animus occupandi) , and some actual exercise or display of such authority ( effectivites) . Another circumstance which must be taken into account by any tribunal which has to adjudicate upon a claim to sovereignty over a particular territory is the extent to which the sovereignty is also claimed by some other Power.

Very little in the way of actual exercise of sovereignty is sufficient, so long as the State can espouse a superior claim, if the area is thinly populated or unsettled.

Loss of sovereignty by conquest. Conquest only operates as a cause of loss of sovereignty when there is war between two States and by reason of the defeat of one of them sovereignty over territory passes from the loser to the victorious State. The principle does not apply in a case where a settlement has been established in a distant country and its inhabitants are massacred by the aboriginal population.

At the time there seems to have been a belief that despite the loss of contact and the loss of knowledge of the whereabouts of the settlements one or both of them would again be discovered and found to contain the descendants of the early settlers.

Thematic Lighthouses: - GR: lighthouses and navigational aids(buoys) are not conclusive manifestations of effective control- X: in very small islands which are uninhabited or not permanently inhabited, when effectivites are generally scarce

Minquiers & Ecrehos Case (1951): erection of a lighthouses and navigational aids are not conclusive manifestations of State authority and does not preclude a claim of sovereignty over an island. The public utility of the buoys and lights by France did not infringe on British shipping interests, and so did not object to their positioning. Since the buoys were placed outside the reefs, and were therefore intended for aiding navigation and to protect shipping, they were not a manifestation of French sovereignty over the Minquiers and Echros Islands.

Eritrea-Yemen Arbitration: The operation or maintenance of lighthouses and navigational aids is normally connected to the preservation of safe navigation, and not normally taken as a test of sovereignty. Second, with regard to the markers, the tribunal cannot give too much weight to such small monuments. Third, shrines and holy places are of a private nature; no governmental activity is suggested.- Eritrea’s claim that the lighthouses in some islands were administered by the lighthouse management

company which has its office in Eritrea. Held: there is no legal basis for concluding that the location within a state of the office of a private firm, operating lighthouse facilities on the islands constitutes an intentional display of power and authority by that state.

- Yemen’s claim of construction and management of some lighthouses. Held: It did not constitute recognition of Yemen sovereignty over islands. It implies the reality that Yemen was best placed, and was willing, to take on the role of providing and managing lights in that part of the Red Sea; and that when the time came finally to determine the status of those islands Yemen would certainly be a "party concerned

Case Concerning Sovereignty Over Pulau Ligitan and Pulau Sipadan (Indonesia v.Malaysia): Reiterates Minquiers that construction of lighthouses do not normally manifest State authority, in the case if very small islands which are uninhabited or not permanent inhabited which have been of little economic importance, effectivites will be generally scarce. The construction of navigational aids can be relevant is the case of very small islands. The effectivites are modest in number but diverse in character, including taking of turtles and taking or turtle eggs, establishment of bird sanctuary and protection of the island.

Map Cases: Preah Vihear Temple Case: Thailand is estopped from questioning the delimitation in the maps because [1] it did

not react to the map when it was so presented; [2] France (Cambodia) relied on Siam’s non-objection. Also, Thailand had even used the map for its affairs.

Libya v. Chad: Theory of auto-imitation. Notwithstanding the fact that the treaty provides for a mere 20-year effectivity, the theory of auto-imitation provide that boundaries have a life of their own separate from the treaty itself because a boundary established by treaty achieves permanence. This is in line with the need to prevent conflict and instability.

Eritrea v Yemen: Both parties produced maps by 3rd parties to demonstrate informed opinion, but it cannot be used as indicative of legal title, but “important evidence of general opinion or repute.” Yemen has introduced

evidence showing that Ethiopia and the Eritrean Government after independence have not considered the Islands to be Ethiopian or Eritrean - but rather Yemeni. Eritrea has also introduced evidence to show that Yemen has itself attributed the Islands to Ethiopia or to Eritrea. This evidence tends to cancel itself out.

Uti Possidetis Juris- The principle states that the national boundaries of former colonies correspond to the earlier administrative borders

of the colonies- Successor states must respect the colonial boundaries of colonial rulers.- For such a legal presumption to operate it is necessary to know what were indeed "the boundaries of the

administrative units of which the dismembered Empire was constituted Frontier Dispute Case (Burkina Faso v. Mali): Uti Possidetis Juris principle. This principle proves administrative

boundaries or colonial heritage during the colonial period, and imposes the obligation to respect pre-existing international frontiers in the event of State succession. It aims to secure respect for the territorial boundaries at the moment when independence is achieved. The rationale for this principle is that the maintenance of the territorial status quo is seen as the wisest course in order to preserve what has been achieved by people who have struggled for their independence and to avoid a disruption.

El Salvador v. Honduras, with Nicaragua intervening: Uti Possidetis Juris principle. The principle will be used where the colonial boundaries are not clear as is in this case where lack of sophisticated means of surveying led to cases of overlapping administrative boundaries.

Terra Nullius - Territory not belonging to any state which may be acquired by occupation Western Sahara Case (Spain v Morocco): Terra nullius means a territory belonging to no one, over which

sovereignty can be acquired by occupation. This is because: [1] state practice indicates that a territory inhabited by tribes having a socio-political organization is not terrae nullius; [2] Spain never treated its case as occupation, but merely “protection.”

Clipperton Island Arbitration (France v. Mexico): If the island is uninhabited, physical occupation is not necessary. Open declaration is sufficient.

It is beyond doubt that by immemorial usage having the force of law, besides the animus occupandi, the actual, and not the nominal, taking of possession is a necessary condition of occupation. This taking of possession consists in the act, or series of acts, by which the occupying state reduces to its possession the territory in question and takes steps to exercise exclusive authority there.

GR: In ordinary cases, that only takes place when the state establishes in the territory itself an organization capable of making its laws respected.

X: In cases when the island is uninhabited. Thus, if a territory, by virtue of the fact that it was completely (1) uninhabited, is, from the first moment when the occupying state makes its (2) appearance there, (3) taking possession and intent to possess is shown by a public declaration of sovereignty, from that moment the taking of possession must be considered as accomplished, and the occupation is thereby completed.

The Scope and Breadth of the Phil. TerritoryTerritory - part of the planet earth subject to the exclusive sovereignty and jurisdiction of states. One of 4 elements of statehood

*Palmas Case: US vs. Netherlands: Discovery alone gives right to an inchoate right which must be perfected through effective occupation.Inter-temporal Law - applicable law is not only the law applicable when the right accrued, but also the law when the right is being enforced.

Critique: 1. arbitral award binding only to parties thereto. Phils was then not a party.2. Jessup's view of "constructive possession"

*Uti Possedetis (El Salvador v Honduras): *Libya v Chad: Boundary delimitations survive the lifetime of the treaty providing them

What is Phil Territory?1935 Constitution – in terms of the Treaty of Paris1987 Constitution - "internal waters"Query: Did 87 intend to abandon Treaty of Paris? NoNot an intention to do away with the Treaty of Paris. Intent was to expand.- Treaty of Paris boundary- disputed territories of Sabbah and Spratlys

Straight BaselinesNorth Sea Continental Shelf (UK v Norway): States with highly irregular coasts may use the outermost points of their baselines and draw straight lines

"Archipelagic Waters"subject to innocent passage(one 1 ground to revoke: threat to security), subject to overflight'87 Consti's internal waters were now subject to innocent passage and overflight. Phils has already opted to become an archipelagic state by depositing last year out baselines and base points.

New Baselines Law (RA 9552)Assumptions1. New Law is required under UNCLOS.FALSE. UNCLOS language is permissive. ex. Japan2. There is a May 2009 deadline to beat. FALSE. Deadline for filing a claim for an extended continental shelf. 3. It is to the national interest to pass the baselines law. FALSE.

Question of constitutionalityOld law: RA 5446

SPRATLYS CONTROVERSYChina’s claim: discovery, effective occupation, ancient title (9-dash line), recognitionPhilippines’ claim: effective occupation after Japan’s renunciation, Treaty of Paris

MODES OF ACQUIRING TERRITORY1. Effective occupation (effectivites) – official exercise of exclusive authority by occupying state or any authorized person, with or without physical occupation, depending on WON the island is inhabited. (Clipperton Island Arb)2. Acquisitive Prescription – long and continued possession, with intent to possess

INSUFFICIENT CLAIMS1. Estoppels2. Discovery, inchoate title - EFFECTIVE OCCUPATION [ISLANDS OF LAS PALMAS CASE]3. Possession – must be w/ animus possidendi, only evidence of title, but not basis of claim4. Constructive possession -nearby territory of archipelago, occupied actually5. Contiguity - only presumption of occupation6. Conquest - illegal

(Under new baselines law, Spratlys was under the regime of islands)1. Phil claim is based on title by virtue of discovery of an island that is res nullius. Discovery made by Thomas Cloma.

2. It became terra nullius because Japan, which had control over the islands, relinquished its title without specifying to whom it was relinquishing it to. The San Francisco peace conference was silent on this.

3. Pursuant to Palmas decision, we have since appended the islands as part of the Palawan, built military infrastructure, established a municipality.

4. Alternative claim is that it forms part of the extended continental shelf of the archipelago of Palawan.(Since DFA says resolve through UNCLOS, it assumes only continental shelf since UNCLOS does not cover land territory.)

5. Definition of an “Archipelago”. This is our strongest claim since we are the only archipelagic claimant of the islands, plus scientific data indicate that they are in fact natural prolongation of the land mass of Palawan.

6. Besides, classification has been addressed by the ICJ in Eritrea v. Yemen.

7. Phil is weakening its claim to the Spratlys: a. Joint Maritime Seismic Exploration w/ China. Also unconstitutional.b. Regime of islands in the baselines law.

2. UNCLOS- Body of treaty rules and customary norms governing the use of the sea, the exploitation of its resources, and the

exercise of jurisdiction over maritime regimes. - Regulates the relations of states with respect to the use of the ocean, not land territory

A. BASELINES- line marking the seaward limit of inland waters, and from which the territorial sea, the contiguous zone and the exclusive economic zone, to be drawn in accordance with the definitions of UNCLOS

1. Normal Baselines –the low-water line along thecoast as marked on large-scale charts officially recognized by the coastal State. (Art 5, UNCLOS)

2. Straight Baselines - the method of straight baselines joining appropriate points may be employed (Art 7, UNCLOS)

Where applicable: in localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity

When coastline is highly unstable: Where because of the presence of a delta and other natural conditions the coastline is highly unstable, the appropriate points may be selected along the furthest seaward extent of the low-water line and notwithstanding subsequent regression of the low-water line, the straight baselines shall remain effective until changed by the coastal State in accordance with this Convention.

How drawing made: The drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters.

Straight baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them or except in instances where the drawing of baselines to and from such elevations has received general international recognition.

The system of straight baselines may not be applied by a State in such a manner as to cut off the territorial sea of another State from the high seas or the EEZ.

What may be taken into account: Where the method of straight baselines is applicable under paragraph 1, account may be taken, in determining particular baselines, of economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by long usage.

Anglo-Norwegian Fisheries Case (UK v. Norway): UK argues that the baseline should be the low-water mark on permanently dry land and that the trace parallele method should be used. However, ICJ allowed Norway’s method

of delimiting the fisheries zone through the straight base-line method reckoned from the outer line of the skjaergaard because [1] this is in consonance with “geographic realities,” “diversity of facts” and “special circumstances;” [2] this gives a simpler form to the belt; [3] general toleration of the international community; [4] the 10-mile-maximium rule on the maximum length of the baseline does not apply because it has always been opposed by Norway.

Trace parallele method; This method consists in drawing the outer limit of the belt of territorial waters by following the coast in all its sinuosities. Method applies to ordinary coasts.

Fundamental considerations in drawing baselines:1. drawing of baselines must not depart to any appreciable extent from the general direction of the coast.

Ratio for this is because it is the land which confers upon the coastal state the right to the waters off its coast.

2. sea areas lying within the baseline must be closely linked to the land domain to be subject to the regime of internal waters.

3. economic interest peculiar to the region, as evidenced by long usage, should be considered.

B. INTERNAL WATERSInternal waters are all waters landwards from the baseline of the territory (rivers, lakes, bays, etc). Sovereignty over these is the same in extent as sovereignty over land, and is not subject to the right of innocent passage. Foreign vessels without a right to call on ports UNLESS there is a Treaty of Commerce, Friendship & Navigation. *In archipelagos, waters landward of the baselines are archipelagic waters, subject to the right of innocent passage.

GR: For internal waters, the coastal State has absolute territorial jurisdiction, thus it may exclude all foreign vessels from its ports.X: When straight baselines established enclosing as internal waters areas which had not previously been considered as such, right of innocent passage exists.

Military & Paramilitary Activities in and against Nicaragua: Coastal states may regulate access to its ports. The coastal state may designate which waters to open and which to close for foreign shipping.

Saudi Arabia v. ARAMCO: ports of every state must be open to foreign vessels and can only be closed when vital interests of the state so requires. But according to Nicaragua v. US, a coastal state may regulate access to its ports.

Bays are well-marked indentations whose penetration is in such proportion to the width of its mouth as to contain land-locked waters and constitute more than a mere curvature of the coast.

Semi-circle test - To be considered a bay, the area of the indentation must be as large as, or larger than, that of a semi-circle whose diameter is a line drawn across the mouth of that indentation

Historic bays are those which are treated by the coastal state as internal waters on the basis of historic rights acknowledged by other states.

El Salvador v. Honduras, with Nicaragua Intervening: Gulf of Fonseca a historic bay (land territory was decided based on principle of uti possidetis juris) Gulf of Fonseca was a case of "historic waters", whereby the three coastal States had succeeded to communal sovereignty. The gulf belonged to a single state before, Spain. In contrast to the frontier delimited on land, the waters of the Gulf had never been divided or otherwise delimited after the independence of the three coastal States. Thus, the communal succession for the three States was a logical consequence of the uti possidetis juris principle with regard to the sovereignty of the Gulf.

C. TERRITORIAL SEA (Sec 3)

This is the belt of sea outwards from the baseline and up to 12 nautical miles. Rocks(Islands) which cannot sustain human habitation or economic life have their own territorial sea.

Portico Doctrine: All islands within the territorial sea(12 nautical miles) pertain to the coastal state.

The Gulf of Sidra Incidents Anglo-Norwegian Fisheries Case: It is the land which confers upon the coastal state a right to waters off its coast.

Low water mark is the mean between the high and low tides. Right of Innocent Passage

The sovereignty of the coastal state over its territorial sea, the airspace above it, and the seabed is the same as its sovereignty over its land territory. However the sea is subject to the right of innocent passage by other states. The rule on innocent passage applies to ships and aircrafts. Submarines however must surface.

Passage - navigation through the territorial sea for the purpose of:(a) traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or(b) proceeding to or from internal waters or a call at such roadstead or port facility.

Passage shall be continuous and expeditious. However, passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress.

Innocent passage is navigation through waters in an expeditious and continuous manner, which is not prejudicial to the peace, good order, or security of the coastal state.

Suspension of right: Coastal states have rights of protection, which is the unilateral right to verify the innocent character of passage. They may take necessary steps to prevent innocent passage, and they may temporarily suspend the right of innocent passage if this is essential for the protection of its security.

Passage which is not innocent: prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities: [TWIP CAMP FROC]a. t hreat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any

other manner in violation of the principles of international law embodied in the Charter of the United Nations;b. exercise or practice with weapons of any kind;c. act aimed at collecting information to the prejudice of the defence or security of the coastal State;d. act of propaganda aimed at affecting the defence or security of the coastal State;e. launching, landing or taking on board of any aircraft;f. launching, landing or taking on board of any military device;g. loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws

and regulations of the coastal State;h. act of wilful and serious pollution contrary to this Convention;i. any fishing activities;j. carrying out of research or survey activities;k. any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal

State; l. o ther activity not having a direct bearing on passage.

On anchoring/stoppage:GR: Not innocent passageX: 1. Incidental to navigation2. necessary by force majeure3. distress

Criminal and Civil JurisdictionCriminal jurisdiction, the coastal state can exercise its criminal jurisdiction in connection with any crime committed on board the ship during its passage if:

1. the consequences of the crime extend to the coastal state2. the crime disturbs the peace of the country or good order of the territorial sea3. the ship’s master or diplomatic agent/consular officer of the flag state requested the assistance of the local

authorities4. it is necessary to suppress illicit traffic in narcotic drugs. - Coastal state can exercise jurisdiction for purpose of an arrest or investigation on board a foreign ship passing

through the territorial sea after leaving internal waters.- Coastal state cannot exercise jurisdiction in relation to any crime committed before the ship entered the territorial

sea, if the ship, proceeding from a foreign port, is only passing through the territorial sea without entering internal waters.

Civil jurisdictionGR: coastal State should not stop or divert a foreign ship passing through the territorial sea for the purpose of exercising civil jurisdiction in relation to a person on board the ship.X: 1. The coastal State may levy execution against or arrest the ship for the purpose of any civil proceedings in respect of

obligations or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage through the waters of the coastal State.

2. coastal State has right to levy execution against or to arrest, for the purpose of any civil proceedings, a foreign ship lying in the territorial sea, or passing through the territorial sea after leaving internal waters.

Laws and Regulations of Coastal State (Sec 21)The coastal State may adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of all or any of the following:

a. safety of navigation and the regulation of maritime trafficb. protection of navigational aids and facilities and other facilities or installations;c. protection of cables and pipelines;d. conservation of the living resources of the sea;e. prevention of infringement of the fisheries laws and regulations of the coastal State;f. preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof;g. marine scientific research and hydrographic surveys;h. prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State.

Coastal state CANNOT impose laws and regs, unless they are giving effect to generally accepted international rules or standards, relating to:

- design, - construction,- manning or - equipment of foreign ships

The coastal State shall give due publicity to all such laws and regulations. Foreign ships exercising the right of innocent passage through the territorial sea shall comply with all such laws and regulations and all generally accepted international regulations relating to the prevention of collisions at sea.

D. STRAITS (Sec 37)Definition of StraitStraits used for international navigation (to navigate between one part of the high seas or an EEZ and another part of the high seas or an EEZ)

Right: ships and aircraft of all countries are allowed “transit passage,” as long as they proceeded without delay and without threatening the bordering states.

Transit PassageTransit passage is the exercise of the freedoms of navigation and overflight solely for the purpose of expeditious and continuous transit (thus they must proceed without delay) of the strait. During transit passage, foreign ships, including maritime scientific research and hydrographic survey ships, may not carry out any research or survey activities without the prior authorization of the bordering states.

Transit passage is inapplicable in three instances: 1. if there exists through the strait a route through the high seas or an EEZ of similar convenience, in which case the

freedoms of navigation and overflight would apply2. if the strait is formed by an island of a state bordering the strait and its mainland, and there exists seaward of the

island a route to the high seas or EEZ of similar convenience, in which case the right of innocent passage would apply

3. if the strait is between a part of the high seas or EEZ and the territorial sea of another state, in which case the right of innocent passage would apply.

Bordering states have the following duties: 1. not to impede the right of transit passage2. to give appropriate publicity to any danger to navigation or overflight within or over the strait of which they have

knowledge3. not to suspend transit passage.

Ships and aircraft exercising the right of transit passage have the following duties:1. to proceed without delay through or over the strait2. refrain from any threat or use of force against the sovereignty, territorial integrity, or political independence of States

bordering the strait, or in any manner in violation of the principles in the UN Charter3. refrain from any activities other than those incident to their normal modes of continuous and expeditious transit

unless necessary due to force majeure or distress4. to comply with the other provisions of UNCLOS.

Also, foreign vessels may not carry out research and survey activities without the prior authorization of the bordering States.

INNOCENT PASSAGE TRANSIT PASSAGENavigation of ships only Navigation of ships and overflightSubmarines are required to resurface and show their flags Submarines are allowed to navigate in normal mode of

continuous and expeditious transit(submerged)Can be suspended Cannot be suspended Designation of sea lanes and traffic, coastal state takes into account recommendations of competent international org

In designation, subject to adoption by competent IO upon proposal and agreement of states bordering straits.

Corfu Channel Case: Passage in straits non-suspendible. The decisive criterion is its geographical situation as connecting two parts of the high seas and the fact of its being used for international navigation. The nature of the Channel satisfies this criterion. It has been a useful route for international maritime traffic. A total number of 2, 884 ships have passed through the Channel in a period of 1 year and 9 months. Passage through it therefore cannot be prohibited by a coastal State in time of peace. Combat formation determines if a passage is innocent.

Duty of coastal state: Obligation incumbent upon Albanian authorities consisted in notifying for the benefit of the shipping in general, the existence of a minefield in Albanian territorial waters and in warning the British warships of the imminent danger to which the minefield exposed them.

E. ARCHIPELAGOS/ARCHIPELAGIC STATES (Sec 46) Archipelagic State means a State constituted wholly by one or more archipelagos and may include other islands

Archipelago means a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such. *An archipelago need not be an archipelagic state

BaselinesArchipelagic state may draw straight baselines joining the outermost points of the outermost islands and drying reefs of the archipelago, provided these points are sufficiently close to one another and that within such baselines are included the main islands and an area in which the water area to land area ratio is between 1:1 and 9:1. All waters inside these baselines are archipelagic waters. Guidelines in drawing the baselines:

1. the length of such baselines shall not exceed 100 nautical miles, except that up to 3% of all the baselines may reach up to 125 miles

2. the drawing of the baselines shall not depart to any appreciable extent from the general configuration of the archipelago

3. such baselines shall not be drawn to and from low-tide elevations4. these shall not be applied in such a manner as to cut off from the high seas or EEZ the territorial sea of another

State

SovereigntyArchipelagic states have sovereignty over:

1. water enclosed by the baselines (archipelagic waters)2. airspace over the archipelagic waters, bed and subsoil, and resources contained therein

Right of Innocent PassageShips of all states enjoy the right of innocent passage through designated sea lanes. The right may, without discrimination in among foreign ships, be suspended temporarily if essential for security, only upon due publication.

Foreign ships and aircraft also have the right of archipelagic sea lanes passage, which refers to continuous, expeditious, and unobstructed passage in sea lands and air routes through or over the archipelagic waters and the adjacent territorial sea of the archipelagic state in transit between one part of the high seas or an EEZ and another part of the high seas or an EEZ (similar to transit passage).

An archipelagic state shall respect existing agreements with other states and shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighboring states in certain areas, including the maintenance and replacement of submarine cables, falling within archipelagic waters.

If the archipelagic state does not designate such lanes, the right of archipelagic sea lanes passage may still be exercised through routes normally used for international navigation. This is criticized as being unduly burdensome for archipelagic states.

Archipelagic Transit Passage- grants right of overflight- non-suspendible

Conflict with the ConstitutionUnder the Philippine Constitution, all waters connecting the islands are internal waters. Thus when the country ratified the UNCLOS, a declaration was added, providing that: “The signing of the Convention… shall not in any manner impair or prejudice the sovereign rights of the Republic of the Philippines under and arising from the Constitution… Such signing shall not in any manner affect the sovereign rights of the Republic… under and arising out of the Treaty of Paris… and the Treaty of Washington… 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 security….”

F. THE CONTIGUOUS ZONE (Sec 33)- Zone contiguous the territorial sea with an area of water not exceeding 24 nautical miles from the baseline. It thus

extends 12 nautical miles from the edge of the territorial sea. This regime is optional. - Coastal state DOES NOT exercise sovereignty over the waters in this zone. - The coastal state ONLY exercises control necessary to (a) prevent and (b) infringement of its:

1. Customs laws 2. Fiscal laws 3. Immigration laws 4. Sanitation laws and regulations

G. THE CONTINENTAL SHELF - the seabed and subsoil of the submarine areas adjacent to the coastal state but outside the territorial sea, either:

o throughout the natural prolongation of its land territory to the outer edge of continental margin, o a depth of 200 nautical miles from baselines

- Where the continental margin (submerged prolongation of the land mass of the coastal state) extends beyond 200 miles, the continental shelf can extend up to a distance of 350 miles.

- Does not form part of the territory of the coastal state- Coastal state have exclusive right to authorize and regulate drilling on the continental shelf for all purposes

Sovereign Rights over Continental Shelf- For the purpose of exploring and exploiting the natural resources in the continental shelf- Exclusive to the coastal state. If coastal state does not explore or exploit, no one may undertake such activities

without its consent- Right does not depend on occupation, effective or notional, or on any express proclamation- Natural resources in the seas-bed and subsoil consist of

o Mineral resourceso Non-living resourceso Sedentary living organisms – at harvestable stage, either immovable on or under the sea-bed, or unable to

move except in constant physical contact with the sea-bed or subsoil.

North Sea Continental Shelf CaseThe rights of the coastal State in respect of the area of continental shelf exist ipso facto and ab initio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources.  In short, there is here an inherent right.  In order to exercise it, no special legal process has to be gone through, nor have any special legal acts to be performed.   Its existence can be declared but does not need to be constituted.  The right does not depend on its being exercised. 

Equidistance method not obligatory. It has never been doubted that the equidistance method of delimitation is a very convenient one. Yet this does not suffice to convert what is a method into a rule of law, making the acceptance of the results of using that method obligatory in all cases in which the parties do not agree otherwise, or in which 'special circumstances' cannot be shown to exist. 

Can use different methods. No objection need be felt to the idea of effecting a delimitation of adjoining continental shelf areas by the concurrent use of various methods.  Equity does not necessarily imply equality. 

Equidistance-Special Circumstances Method Libya v. Malta: Equitableness of result is primary. The delimitation of a continental shelf boundary must be effected

by the application of equitable principles in all the relevant circumstances in order to achieve an equitable result.

Delimitation process:

1. Make a provisional delimitation. The tracing of a median line between those coasts, by way of a provisional step, is the most judicious manner of proceeding in case of opposite states.

2. 2. Examination of the provisional solution in light of the requirements derived from other criteria, which may call for a correction of the initial results. (Due to the great difference in length of the coasts and the general geographical context (the Maltese islands appear as a relatively small feature in a semi-enclosed sea), the delimitation line must be adjusted so as to lie closer to the coasts of Malta.)

Anglo-French Arb: Equidistance-special circumstances rule means that the obligation to apply the equidistance principle is always one qualified by the condition "unless another boundary line is justified by special circumstances". The role of the "special circumstances" condition is to ensure an equitable delimitation and the combined "equidistance-special circumstances rule", in effect, gives particular expression to a general norm that, failing agreement, the boundary between States abutting on the same continental shelf is to be determined on equitable principles.

First step: the legal frame to be used is that of delimitation between “opposite” States. The first step should be to determine the course of the median line within the Channel.

Second step: delimit a second boundary, which takes into account the special circumstances of the parties in question. (This case: geographical location and presence of islands considered part of its territory)

Half-Effect Tunisia v. Libya: The technique involves drawing two delimitation lines, one giving to the island the full effect

attributed to it by the delimitation method in use, and the other disregarding the island totally, as though it did not exist. The delimitation line actually adopted is then drawn between the first two lines, either in such a way as to divide equally the area between them, or as bisector of the angle which they make with each other.

Guinea v. Guinea Bissau Aegean Sea Continental Shelf Case (Greece v. Turkey) Case Concerning Maritime Delimitation in the area between Greenland and Jan Mayen (Denmark v. Norway) Canada & France, St. Pierre

H. THE EXCLUSIVE ECONOMIC - an area extending not more than 200 nautical miles beyond the baseline.

Rights of coastal state1. sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources,

whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;

2. jurisdiction with regard to : the establishment and use of artificial islands, installations and structures; marine scientific research; the protection and preservation of the marine environment;

Obligations of coastal states1. Ensure through proper conservation and management measures that the living resources of the EEZ are not

subject to over-exploitation. This includes the duty to maintain and restore populations of harvested fisheries at levels which produce a maximum sustainable yield. Anadromous stocks - States in whose rivers anadromous stocks originate shall have the primary interest in and responsibility for such stocks.Catadromous species- coastal state where they spend the greater part of their life cycle shall have responsibility for the management of these species and shall ensure the ingress and egress of migrating fish.Sedentary species-not in EEZ but in continental shelf

2. Promote the objective of “optimum utilization” of the living resources. They must determine the allowable catch of living resources, and if they don’t have the capacity to harvest the allowable catch, they must grant access to other states. Highly migratory species of fish and marine mammals are accorded special protection.

Rights of other states- Freedom of navigation and overflight of other states.

Right of land-locked States (do not border the sea and have no EEZ)- right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus of the living

resources of the exclusive economic zones of coastal States of the same subregion or region, taking into account the relevant economic and geographical circumstances of all the States concerned

Enforcement of laws and regulations of the coastal State

- Take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources

- Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security.- Penalties may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or

any other form of corporal punishment. - coastal State shall promptly notify the flag State, through appropriate channels, of the action taken and of any

penalties subsequently imposed.

Spain v. Canada: Vessels guilty of illegal fishing not subjected to imprisonment, and promptly released upon posting of bond

M/V Saiga (St. Vincent & Grenadines v. Guinea):Coastal state has no right to exercise jurisdiction with regard to its customs laws. This right is granted only in the contiguous zone. This jurisdiction can also be applied in respect to artificial islands, installations and structures. Genuine link test : Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship.

Prompt release of vessels and crewsWhen the detaining State has not promptly released vessel upon the posting of a reasonable bond or other financial security, the question of release from detention may be submitted to any court or tribunal agreed upon by the parties or, to a court or tribunal accepted by the detaining State under article 287 or to the International Tribunal for the Law of the Sea, made by or on behalf of the flag State of the vessel.

The court or tribunal shall deal without delay with the application for release and shall deal only with the question of release, without prejudice to the merits of any case before the appropriate domestic forum against thevessel, its owner or its crew. Upon the posting of the bond or other financial security determined by the court or tribunal, the authorities of the detaining State shall comply promptly with the decision of the court or tribunal concerning the release of the vessel or its crew.

Camouco Case (Panama v. France): Local remedies need not be exhausted in order to file an application. Reasonableness of Bond Amount. The basis is the value of the detained vessel and of the cargo seized, the amount of the bond imposed by the detaining State and its form but the value of the vessel alone may not be the controlling factor in the determination of the amount of the bond or other financial security if there is no evidence to support the assessment.

I. DELIMITATION OF MARITIME BOUNDARIES Territorial Sea

1. Agreement2. Failing agreement between, median line every point of which is equidistant from the nearest points on the baselines

from which the breadth of the territorial seas of each of the two States is measured. 3. delimit the territorial seas of the two States in a way which is at variance with 2, where it is necessary by reason of

historic title or other special circumstances

EEZ and Continental Shelf1. Agreement2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the

procedures for settlement by peaceful means. 3. Pending agreement, the States concerned shall make every effort to enter into provisional arrangements of a

practical nature

Art. 6 of the Continental Shelf Convention - single technique for continental shelf delimitation (a median for maritime areas between opposite coasts, and a

lateral equidistance line for coasts of adjacent States). This method is inspired by and derives from this equitable criterion: that the equitable solution, at least prima facie, is an equal division of the areas of overlap of the continental shelves of the two States. However the applicability of this method is subject to the condition that there are no special circumstances in the case which would make that criterion inequitable

Relevant/special circumstances: 1. General configuration of the coasts of the parties2. Where there is a geographical situation of quasi-equality between a number of states, it is necessary to abate effects of an incidental special feature which might result in unjustified, different treatment. ( to avoid the effects of a concave coast, the location of islands of one state near the other, and the eccentric alignment of small islands lying off a peninsula).

3. The geological structure of the sea-bed and its geomorphology (or surface features)4. The disparity of coastal lengths in the relevant area. 5. The general geographical framework or context. 6. The conduct of the parties, such as the de facto line produced by the pattern of grants of petroleum concessions in the disputed area. 7. The incidence of natural resources (oil and natural gas) in the disputed area. 8. The principle of equitable access to the natural resources of the disputed area. 9. Defense and security interests of the disputing states.10. Their navigational interests. 11. Consistency with the general direction of the land boundary.

In the Libya v. Malta and Gulf of Maine cases, the delimitation was done in two steps. First, a provisional delimitation line was provided. Next, the provisional solution was examined, taking account of special circumstances. If necessary, the initial results were corrected.

J. THE HIGH SEAS- all parts of the sea that are not included in the territorial sea or in the internal waters of a State. Contiguous zone

and EEZ are part of high seas. - The high seas are subject to 6 freedoms: 1. freedom of navigation2. freedom of overflight - Freedom of overflight belongs to both civilian and military aircraft.3. freedom of fishing - duty to cooperate in taking measures to ensure the conservation and management of the living

resources of the high seas. 4. freedom to lay submarine cables and pipelines5. freedom to construct artificial islands and structures6. freedom of scientific research.

Flag State- Every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas. The flag state

has exclusive jurisdiction over its ships on the high seas to the extent not limited by agreement. By legal fiction, a ship is a floating part of the flag state.

- In case of collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, penal or disciplinary proceedings may be instituted against such person in the flag State or of the State of which such person is a national.

- No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State.

When boarding allowedA warship which encounters on the high seas a foreign ship can board the latter only if there is a reasonable ground for suspecting that:

1. the ship is engaged in piracy2. the ship is engaged in slave trade3. the ship is engaged in unauthorized broadcasting and the flag state of the warship has jurisdiction 4. the ship is without nationality5. though flying a foreign flag or refusing to show its flag, the ship is really of the same nationality as the warship.

Piracy refers to the following acts:1. 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: on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; or against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

2. any act of voluntary participation in the operation of a known pirate ship or aircraft;3. any act of inciting or of intentionally facilitating any of the above acts.

Hot PursuitHot pursuit is allowed where there is good reason to believe that the ship has violated laws or regulations of a coastal state. Requisites: (4Cs)

1. Commence when the foreign vessel is within the internal waters, the archipelagic waters, the territorial waters, or the contiguous zone, EEZ of the pursuing state.

- If the foreign ship is in the contiguous zone, it may be pursued only for violations of the rights of the coastal state in the contiguous zone. Mutatis mutandis, the right of hot pursuit shall also apply to violations of applicable laws and regulations of the coastal state in the EEZ or the continental shelf including the safety zones of the shelf.

2. Continuous and unabated. It may continue to the high seas if the pursuit has not been interrupted.

3. Conducted by warships, military aircrafts or government ships authorized for such purpose. 4. Cease as soon as the ship pursued enters the territorial waters of its own state or of a third state.

When commenced- Hot pursuit is not deemed to have begun unless the pursuing ship has satisfied itself by such practicable means as

may be available that the ship pursued is within the limits of the territorial sea or, as the case may be, within the contiguous zone, EEZ, or above the continental shelf.

- The pursuit may only be commenced after a visual or auditory signal to stop has been given at a distance which enables it to be seen or heard by the foreign ship.

J. CONSERVATION AND MANAGEMENT OF LIVING RESOURCES OF THE HIGH SEASAll states have the right for their nationals to engage in fishing on the high seas, subject to their treaty obligations, the rights and duties of coastal states, and the UNCLOS provisions. In line with this, all states have the duty to take, or to cooperate with other states in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas (e.g. determining the allowable catch).

Southern Bluefin Tuna Case: States Parties to the Convention have the duty to cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of highly migratory species. SOUTHERN BLUE FIN TUNA, A HIGHLY MIGRATORY SPECIES OF FISH! Tribunal may prescribe provisional measures to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment. MEASURES SHOULD BE TAKEN TO PRESERVE RIGHTS AND AVERT MORE DETERIORATION.

K. RIGHT OF LAND-LOCKED STATES TO AND FROM THE SEA

A land-locked state is one which has no sea-coast. These states have the right of access to and from the sea and the freedom of transit through the territory of a transit state (a state, with or without a sea-coast, situation between a land-locked state and the sea, through whose territory traffic in transit passes). Traffic in transit shall not be subject to any customs duties, taxes, or other charges, except those levied for specific services rendered in connection with such traffic.

L. INTERNATIONAL SEABED AREA

These are areas of the seabed and the ocean floor, and their subsoil, which lie beyond any national jurisdiction. These are the common heritage of mankind and may not be appropriated by any state or person. All rights in the resources of the Area are vested in mankind as a whole, on whose behalf the Authority (the International Sea-Bed Authority) shall act. These resources are not subject to alienation. The minerals recovered from the Area, however, may only be alienated in accordance with the relevant provisions of UNCLOS. The Enterprise is the organ of the Authority which shall carry out activities in the Area directly as well as the transporting, processing, and marketing of minerals recovered from the Area, and shall have its principal place of business at the seat of the Authority.

N. MARINE POLLUTION

Marine pollution prevention and control arising from land-based sources, sea-bed-activities subject to national jurisdiction, activities in the Area, vessels and others are covered quite extensively under UNCLOS. States are bound to prevent and control marine pollution from any source and are liable for damage caused by violation of their international obligations to combat such pollution.

* Sir: marine pollution cases are different from quasi-delicts, for the latter requires proof of negligence in order to recover damages. Under the TOVALOP and CRISTOL, there is no need to prove fault for there is an immediate duty to pay for the clean-up. However, shipping and oil companies are required to pay only up to a certain amount (based on an oil fund). This arose as a response to the Exxon incident. Take note that the US doesn’t recognize a ceiling. Also, in cases of gross negligence, the companies will lose the benefit of limited liability and will become liable for the amount needed for the clean-up.

O. NAVIGATION

Every State has the right to sail ships flying its flag on the high seas. It is the State’s right to decide the conditions by which it will accord the right to fly its flag. No ship may change its flag during its voyage except in case of transfer of ownership or on the basis of change of registry. If a ship sails under the flag of 2 states, it is considered as having no nationality and may not claim any of the nationalities represented by these flags with respect to any other State. Only the flag state may exercise criminal jurisdiction over the master or any person in the service of the ship. This is a departure from the SS Lotus case. Also the flag state shall have the duty to require the ship’s master, without danger to the crew or passengers, to render assistance to any person at sea in danger of being lost, or to rescue persons in distress.

P. SETTLEMENT OF DISPUTES

Peaceful settlement of disputes is compulsory. If a bilateral settlement fails, UNCLOS requires submission of the dispute for compulsory settlement in one of the tribunals clothed with jurisdiction. The alternatives are the International Tribunal for the Law of the Sea, the ICJ, or an arbitral tribunal constituted under the Convention.

Q. PEACEFUL USE OF THE OCEANS

In exercising their rights and performing their duties under UNCLOS, states shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the UN Charter.

R. ARCHAEOLOGICAL AND HISTORICAL OBJECTS

States have the duty to protect objects of an archaeological and historical nature found at sea.

3. JURISDICTION & IMMUNITIES

Cases on Jurisdiction: Brownwell v. Sunlife, 95 Phil 228 People v. Lol-lo & Saraw, 43 Phil 19 Tubb v. Greiss, 78 Phil 249 Haw Pia v. China Banking, 80 Phil 604

Cases on Sovereign Immunities: Hilao v. Estate of Ferdinand Marcos, Judgment of Feb 1985 & Opinion/Order of November 1995 JUSMAG Philippines v. NLRC, 239 SCRA 224 USA v. Reyes, 219 SCRA 192 Wylie v. Rarang, 209 SCRA 357 USA v. Ruiz, 136 SCRA 487 WHO v. Aquino, 48 SCRA 242 Lyons Inc. v. USA, 104 Phil 593 Liang v. People, March 26, 2001 Minucher v. CA, 214 SCRA 242 Holy See v. Rosario, 238 SCRA 524 SEAFDEC v. Acosta, 226 SCRA 49 ICMC v. Calleja Ex Parte Pinochet, 38 ILM 581, March 1999 Israel v. Eichmann, 1962 Ker v. Illinois, December 6, 1886 Machain v. Sosa Sosa v. Machain Ebrahim Case UNOCAL Case: Decision by the California Central District Court Congo v. Belgium, ICJ Reports, February 14, 2002 US v. Purganan (Mark Jimenez Cases) = 2 cases: SC & MFR Flowers v. Clinton Teotico v. Governor General

K. International Responsibility Higgins, Chapter 9 Brownlie, Chapter 21 ILC Draft Articles on State Responsibility, Harris Casebook, 2004 edition

Cases:

Corfu Channel Case, ICJ Reports, 1949 Rainbow Warrior Arbitration (Report) US Diplomatic & Consular Staff (US v. Iran), ICJ Reports, 1980 DC Decision on UNOCAL Chorzow Factory Case, 1928 PCIJ Ser. A, No. 17 Prosecutor v. Tadic

Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories

Bosnia Case (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)), February 26, 2007

State Responsibility, Harris Case book , 1994 & 2004 editions1994 edition

Union Bridge Company Claim (US v. Great Britain), 1924 Youmans Claim (US v. Mexico), 1926 Zafiro Claim (Great Britain v. US), 1925 Bolivar Railway Company Claim (Great Britain v. Venezuela), 1903

2004 edition Neer Claim (US v. Mexico, 1926) Starrett Housing Corp. v. Iran (Interlocutory Award) (US v. Iran), 1983

L. Vienna Convention on the Law of Treaties Brownlie, Chapter 26

Cases:

Definition of “treaty” Abaya v. Sec. Ebdane, G.R. No. 167919, February 14, 2007 DBM v. Kolonwel Trading; Vibal v. Kolonwel; DEPED v. Kolonwel, June 8, 2007

Definition of “ratification” Lim v. Exec. Sec., G.R. No. 151445. April 11, 2002 Bayan v. Zamora, October 10, 2000 Pimentel v. Exec. Sec. (Class Project of Prof. Roque’s evening class) Salonga Petition on the VFA, January 22, 2007 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), ICJ Reports, 1986

M. Vienna Convention on Diplomatic Relations; Vienna Convention on Consular Relations and Optional Protocols

(Use Beda Handout) US Diplomatic & Consular Staff (US v. Iran) Case Concerning Avena and other Mexican Nationals (Mexico v. USA)

B. International Organizations

1. The UN Charter & the Use of Force Arts. 2(3), 2(4), 24(1), 25, 23(1), 27(3), UN Charter Higgins, Chapters 10, 14 & 15

Cases: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), ICJ Reports, 1986 Legality of the Use by a State of Nuclear Weapons, ICJ Reports, 1966 Legality of the Use of Force (Yugoslavia v. US), 38 ILM 1199 The Relationship between the UN Charter and General International Law regarding non-use of force: The

Case of NATO’s air campaign in the Kosovo Crisis of 1999, Shinya Murase The Caroline Case M.W. Reisman, “Assessing Claims to Revise the Laws of War,” 97 AJIL 82 at 87, 2003 Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America), December 12, 1996

2. International Court of Justice Arts. 92, 93, 94, 96, UN Charter Arts. 1, 34(1), 35(1), ICJ Statute

a. Applicable Law Arts. 38 & 59, ICJ Statute The Security Council under Chapter VII of the UN Charter: Problems under the Rule of law, H.

Harry L. Roque, Jr.

b. Jurisdiction

Art. 36(1), (2) & (3), ICJ Statute

c. Advisory Opinions Higgins, Chapter 11

Cases on Jurisdiction: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), ICJ Reports, 1986 Lockerbie Case (Libyan Arab Jamahiriya v. USA), ICJ Reports, 1988 ELSI Case, ICJ Reports, 1989 South West Africa Cases, ICJ Reports, 1966 Nauru v. Australia, ICJ Reports, 1992 Case Concerning East Timor (Portugal v. Australia), ICJ Reports, 1995

Cases on Provisional Measures: Bosnia Case (Application of the Convention on the Prevention and Punishment of the Crime of

Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)), February 26, 2007 Lockerbie Case (Libyan Arab Jamahiriya v. USA), ICJ Reports, 1988

Cases on Dispute: Admissions Case (Conditions of Admission of a state to membership in the United Nations), ICJ

Reports, May 28, 1948 Free Zones Case (Case of the Free Zones of Upper Savoy and the District of Gex), PCIJ Ser. A/B.

No. 45, June 7, 1932 Marvrommatis Case, PCIJ Ser. A, No. 2, 1924 UN Headquarters Advisory Opinion (Applicability of the Obligation to Arbitrate under Sec. 21 of the

UN Headquarters Agreement of June 26, 1947), ICJ Reports, April 26, 1988

Cases on Advisory Opinions: Legality of the Use by a State of Nuclear Weapons in Armed Conflict (WHO Request), ICJ Reports,

1996 Monetary Gold Case (Monetary Gold Removed from Rome in 1943 (Italy v. France, UK of Great

Britain & Northern Ireland, & the USA)), ICJ Reports, June 15, 1954 Certain Expenses of the UN, ICJ Reports, 1962 Western Sahara Case, ICJ Reports, 1975 Botswana v. Namibia (Case Concerning kasikili/Sedudu Island), ICJ Reports, 1999 Status of Eastern Carelia (Finland v. Russia), PCIJ Ser. B, No. 5, July 23, 1923 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied

Palestinian Territories

C. The Individual

1. Human Rights (Report) Higgins, Chapter 6

2. International Criminal Law6a. Nurumberg Tribunalb. Tokyo War Crimes Tribunal (Report)c. 1949 Geneva Conventionsd. 1978 Additional Protocol to the Geneva Conventione. Security Council Resolution No. 827 (Yugoslavia War Crimes Tribunal)f. Security Council Resolution No. 955 (Rwanda War Crimes Tribunal)g. 1998 Rome Convention on the International Criminal Court

Cases: Advisory Opinion on the Legality of Nuclear Weapons (WHO Request), ICJ Reports, 1996 Yugoslavia War Crimes Tribunal Decision on Tadic, July 15, 1999 (www.un.org/icyt/ pressreal/tad-sumj99) Yamashita v. Styer, 75 Phil 563 Dizon v. Commanding General (Report)

3. Foreign Investments & Natural Resources Brownlie, Chapter 24 Higgins, Chapter 8

Cases: Texaco v. Libya, 17 ILM or 53 ILR 389, 1978 BP v. Libya, 53 ILR 279 Saudi Arabia v. Arabian American Oil Company, 27 ILR 117 Chorzow Factory Case, PCIJ Ser. A, No. 17, 1928 LIAMCO v. Libyan Arab Republic, 62 ILR 140 Starrett Housing Case, 4 Iran-US Claims Tribunal Report Kuwait v. Aminoil, 66 ILR 518 Sapphire Case, 35 ILR 136

a. When Lawful Starrett Housing Case, 4 Iran-US Claims Tribunal Report AMOCO Case (US v. Iran), 27 ILM 1314 Phillips Petroleum Company Iran, v. The Islamic Republic of Iran, and The National Iranian Oil, 21

Iran-US Claims Report

Readings Higgins, “The Taking of Property by the State,” vol. 162, Rescueil des Cours, 1979 Jimenez de Arechega, “State Responsibility for the Nationalization of Foreign Property,” 11 NHUJ of

International Law & Politics 189, 1978 E. Lauterpacht, “Issues of Compensation and Nationality in the Taking of Alien Property,” 8 JENRL

241, 1990 M. Meldelson, “What Price Expropriation? Compensation for Expropriation: The Case Law,“ 79 AJIL

414, 1985

b. WTO The Philippines and the WTO: Survey of Current Practices with Emphasis on Anti-Dumping,

Countervailing Duties and Safeguard Measures, H. Harry L. Roque, Jr.

Cases: Bautista Paper (Amicus Memorandum of Ambassador Lilia Bautista), GR No. 118295, August 1996 Tañada v. Angara, GR No. 118925, May 2,1997

Appellate Body Reports:

Japan—Taxes on alcoholic beverages, October 4, 1996 Korea—Taxes on alcoholic beverages, January 18, 1999 European Communities—Measures Affecting Asbestos and Asbestos-Containing Products, March 12,

2001 United States—Standards for Reformulated and Conventional Gasoline, April 29, 1996 European Communities—Anti-Dumping Duties on Imports of Cotton-type Bed Linen from India, April

8, 2003