PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH – 407 A.Y.
2015-2016
TOPICS FOR FINALS
A. STATE RESPONSIBILITY
I. Scope of Responsibility
a. Cessation and a guarantee of non-repetition
b. Reparation
 Restitution
 Satisfaction
 Compensation
c. Breaching state will be subject to lawful countermeasure
II. Acts or events precluding wrongfulness
Important: These topics were not discussed by sir due to lack of
time. Just read the Draft Articles on State Responsibility.
B. LAW OF THE SEA
C. INTERNATIONAL HUMAN RIGHTS LAW
D. INTERNATIONAL ENVIRONMENTAL LAW
LAW OF THE SEA
UNITED NATIONS CONVENTION ON THE LAW OF THE SEA
UNITED NATIONS CONVENTION ON THE LAW OF THE SEA
Read: 1982 UNCLOS III
There have been three conventions, which attempted to codify
customary international law pertaining to the Law of the Sea. By the
very nature of this subject matter, a lot of states had disagreed on
various aspects of the draft convention. So, it took almost three decades
to finalize a convention, which is now called the “Constitution of the
Ocean”.
Codification of CIL or progressive development of IL
Except Part XI of the UNCLOS III, all provisions are either codifications
of customary international law (CIL) or progressive development of
international law, because of the unanimity or at least a general
consensus of these provisions by most states after a while.
The seabed and mining matters under Part XI have been subjected to
several criticisms and reservations, it is very difficult to assume that
these can be considered as codification of customary international law.
But of course, for state parties to the convention and those who have
not made reservations on Part Xi, then they will be bound by the
provisions of the UNCLOS III.
How to study the UNCLOS?
The moment you have this as your framework in reading the articles,
you will effectively understand the same.
1. Identify and measure the extent of the different maritime zones
2. What consists these zones?
Bretch: Does it consist of body of water, seabed, and subsoil, anything
under, airspace above?
3. What is the extent, if any, of the authority, jurisdiction or right of
the coastal state over the zone?
Bretch: Is it an exercise of sovereignty? If yes, up to what extent? Or will it
only include the exercise of specific jurisdiction?)
Art I of the 1987 Constitution
“The national territory comprises the Philippine archipelago, with all the
islands and waters embraced therein, and all other territories over which the
Philippines has sovereignty or jurisdiction…”
Exercise of Sovereignty v. Exercise of Jurisdiction
Exercise of sovereignty includes the exercise of jurisdiction.
But if it is an exercise of mere jurisdiction, you have to be specific as to what
particular jurisdiction will be exercised and up to what extent.
4. Know the regime applicable to that zone.
1|U N I V E R S I T Y O F S A N C A R L O S
Important provisions in the UNCLOS
1. Internal waters
2. Territorial Sea (Articles 2-32)
3. Contiguous zone (Art 33 and 303)
4. Exclusive Economic Zone (Articles 55-75)
5. Continental Shelf Regime (Articles 76-84)
6. High Seas (Articles 86-120)
7. International Seabed “The area” (Articles 133-191)
Master these:
EEZ and Continental Shelf Regimes (in relation to the current dispute
concerning the West Philippine Sea)
Zones to study
1. Internal waters
2. Territorial sea
3. Contiguous zone
4. Exclusive economic zone
5. High seas
6. Continental shelf/Extended Continental shelf
7. The area
BASELINE
BASELINE
There is a principle in the law of the sea that “the land dominates the
sea” meaning all these maritime zones are dependent on the land
precisely we have to identify the baseline because that baseline is based
on the land territory or the land mass. In other words, we based the
extent of these maritime zones from the land mass.
One of the challenges of states in crafting the UNCLOS, is to come up
with a united manner of delineating the baseline. Some have proposed
that there be median delineation on low-water and high-water mark.
Until eventually, we agreed on low-water mark method.
Important: Know how to draw a baseline.
Two methods in determining baseline
When do we apply one method over the other? Determine if State is
archipelagic or not.
1. Straight baseline method – This is applicable to archipelagic
states. This is because it is difficult to apply low-water mark in an
archipelago. If we apply low-water mark, it would seem that there
is international waters in between the area of Visayas and
Mindanao, which is more than 24 nautical miles. That is not
possible. And so, we have agreed in the UNCLOS III that we apply
the straight-baseline method. This is an implementation of the
concept of the Archipelagic Doctrine of Territoriality.
2. Low water mark method – We apply this if the state is a non-
archipelagic state. A low-water mark is where the sea stops during
the low tide. During low tide, you’ll see that point where the dry
area of the foreshore land meets with the water.
Summary:
a. If archipelagic State – straight baseline method
b. If not an archipelagic State – low water mark method
ARCHIPELAGIC DOCTRNE OF TERRITORIALITY
ARCHIPELAGIC DOCTRINE OF TERRITORIALITY
This means that all the islands of the archipelago will be considered as
pertaining to one and single unit. And so as an application of this
doctrine, we declared in Article I of the 1987 Constitution:
“…all the waters around between, the connecting the islands of the
archipelago, regardless of their breadth and dimensions, from part of
the internal waters of the Philippines.”
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH – 407 A.Y. 2015-2016
Archipelagic water
But that is quite disturbing though because the UNCLOS acknowledges
the possibility of what is called an “archipelagic water” for an
archipelago. An archipelagic water will be treated as if it is a territorial
sea for purposes of the right of innocent passage. That is why others
claim that it is a controversial pronouncement on our part because it
seems like we’re the only archipelago where we cannot find archipelagic
waters because all these islands, regardless of breadth and dimension,
shall be considered internal waters not archipelagic waters.
But in reality, this is not a controversy. Whatever we do in our
Constitution in regard to territories and delimitation would have no effect
in international law because disputes or issues involving territory of the
state will always be resolved by international law. Even if we claim
whatever island is found in the Pacific, whether we in fact had a law that
we owned the island, this will have to be determined by international
law not by our own domestic law.
The drawing of the baseline is not determinative of the territory
of the State.
Magallona Case
(Will be further discussed on the latter part of the discussion)
RA 9225 – Baseline Law following straight baseline method. Magallona
questioned Baseline Law because it restricted/reduced the territory of
the Philippines. It was no longer consistent with historic and legal claims.
The Supreme Court said the drawing of the baseline is not determinative
of the territory of the state. It is only relevant for determining maritime
zones.
MEASUREMENTS OF THE ZONES OF THE SEA
MEASUREMENT OF THE ZONES OF THE SEA
From the baseline, we reckon the different maritime zones.
1. Territorial Sea
2. Contiguous zone
3. Exclusive Economic zone
4. High seas
5. Continental shelf
6. International sea bed “the area”
TERRITORIAL SEA
12 nautical miles from the baseline.
CONTIGUOUS ZONE
24 nm from the baseline or 12 nm from the territorial sea. It is called
“contiguous” because it is a continuation of the territorial sea which
means that if you have a territorial sea, you don’t have to claim a
contiguous zone. Because the contiguous zone is automatically
recognized the moment the state claims a territorial sea.
Important: If you have a territorial sea, you do not have to claim a
contiguous zone because once territorial sea of 12 nautical miles is
claimed, contiguous zone is automatically recognized.
2|U N I V E R S I T Y O F S A N C A R L O S
These zones have to be claimed including Exclusive Economic Zone or
EEZ. The only zone here that does not require any claim through the
issuance of a proclamation or any governmental act is the Continental
Shelf.
Remember:
1. Territorial sea, contiguous zone, exclusive economic zone have to
be claimed.
Except: Contiguous zone doesn’t have to be claimed if you have
already claimed 12 nm territorial sea.
2. If you haven’t claimed 12 nm territorial sea, then you should claim
your 24 nm contiguous zone.
EXCLUSIVE ECONOMIC ZONE (EEZ)
200 nm from baseline. That is for purposes of computation, but
technically, the regime applicable to EEZ would only be around 188 nm.
This is because 12 nm of that 200 nm is already your territorial sea.
HIGH SEAS
What comes after the EEZ is now termed as the High Seas.
High Seas v. International Waters
The term “International waters” applies to that space after the territorial
sea. This means that we term it international waters for purposes of
emphasizing that the sovereign authority or jurisdiction of the state
extends only up to the territorial sea of 12 nm.
There may be instances where a coastal state may exercise specific
jurisdiction beyond 12 nm, but only for limited purposes.
Examples:
In contiguous zone (12nm from territorial sea)
The coastal state can only exercise what is called Protective Jurisdiction.
Jurisdiction can be exercised in the contiguous zone only for the
following:
1. Implementation of sanitary or health laws
2. Immigration laws
3. Customs
4. Currency or fiscal laws
All other concerns not related to these four, can no longer be exercised
by the coastal state.
Exclusive Economic Zone (188nm from territorial sea)
The coastal state no longer has jurisdiction similar to the jurisdiction of
that coastal state in its territorial boundaries/sea. The right of the coastal
state over the EEZ is simply called “sovereign rights over the natural
resources”. In particular, resources in the superjacent water because
resources in the seabed or subsoil is governed by another regime which
is the Continental Shelf Regime.
Except: Where the exercise of jurisdiction is with respect to the
enforcement of environmental laws, it may extend up to the EEZ. This
is precisely because under UNCLOS, all coastal states are given not only
the right, but also obligation to preserve the environment up to the EEZ.
High seas
No state can ever exercise exclusive jurisdiction. But that is not to say
that there are no rights pertaining to states in the high seas. In fact,
these rights are shared by all states whether landlocked or not, not just
coastal states. There are different freedoms in the high seas such as
freedom of navigation, overflight, laying of submarine pipes, cables, etc.
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH – 407 A.Y. 2015-2016

CONTINENTAL SHELF
The continental shelf is that natural prolongation of the continent until
it reaches the very deep sea bed, that portion where the continent will
no longer slope further.
The extent or measurement of the continental shelf:
A. Continental Shelf – it may be up to 200 nm
B. Extended Continental Shelf – it could be 350 nm (150 nm after
the EEZ) or 100 nm from the Isobath.
the coastal state. Let us supposed the applicable rule is 350 nm, after
the 350 nm, this portion will now form part of the area.
If it is already part of the area, we apply the Regime on Common
Heritage of Mankind. This area therefore cannot be exploited, explored
by a state which would use or utilize the produce or the product of such
exploitation exclusively. That is why they have an International Seabed
Authority applying the common heritage of mankind, this is reserved not
to any state exclusively, but to all of mankind. In the same way, that is
the regime applicable to our heavenly bodies. It cannot be appropriated
and exploited.

This is the way through the International Seabed Authority that one
state can actually exploit or explore the resources in the area, but it will
be required to share with other states in particular giving preference or
priority to developing states.

Do all states have EEZ?

Not all. Iraq doesn’t. Landlocked states don’t have EEZ, but all states
whether landlocked or not enjoy the right of innocent passage and will
enjoy all freedoms and rights in the high seas.

PHILIPPINE MARITIME ZONES

PHILIPPINE MARITIME ZONES
The problem here actually is, there are rules that should be observed in
Continental Shelf the delineation of the baseline especially with respect to indentions in
If the natural prolongation of the land mass beneath the water, stops the land mass, I’m talking about the bays for example. If you have an
before reaching 200 nm, the continental shelf of that state extends to archipelago like the Philippines for example.
200 nm. Even if the slope ended earlier than 200 nm, the coastal state
still enjoys sovereign rights over the seabed and the subsoil and
therefore including the minerals and natural gas not only in the seabed
and subsoil, but even beneath.

Extended Continental Shelf

If the natural prolongation extends further than 200 nm, it would extend
up to the maximum of 350 nm only.

Isobath rule
The other extended continental shelf is when you apply an Isobath rule,
depending on whether or not there is a sudden drop of that slope
towards the seabed. If the sloping continental margin suddenly drops,
the state is given up to 100 nm from the Isobath. There is a possibility
that 100 nm after 2500 m Isobath could extend up to 350 nm. Although
this is still an issue whether it can extend because the UNCLOS says the
maximum continental shelf is 350 nm.

Here, I think this is an old one in a sense that this was still amended by
RA 5446. This has already been a little bit adjusted by RA 9522, the new
baseline law which was the subject matter of inquiry in the Magallona
case.

The delineation of the baseline of all States would have to be

under the competence of that State.
We do not have an International body that delineates the baseline of all
states. So, it is us who have the competence because we know our
territory. Provided, that the drawing of the baseline is in accordance with
the United Nations Convention on the Law of the Sea. And we were
given a deadline on 2009 and we passed RA 9225 delineating our
baseline. The following week, straight baseline method.

THE AREA
If the high seas is determined on the basis of the EEZ, that area is
determined on the basis of the point of the continental shelf. If the high
seas is to EEZ, the area is to the continental shelf.

In the high seas, there’s freedom of fishing, freedom of navigation. With

respect to the area, since it is part of the continental shelf regime
because it has extended more than 200 nm. This one pertains still to
3|U N I V E R S I T Y O F S A N C A R L O S
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH – 407 A.Y. 2015-2016
The drawing of the straight baseline method should be in
accordance with the UNCLOS.
That is why we have to observe the following:
1. We need to identify the outermost Islands and dry reefs of the
archipelago
2. We need to identify the outermost points of these outermost
Islands and dry reefs.
Bretch: Because that is where we will connect the straight lines that we will
be drawing applying the straight line method. We need to connect therefore
the outermost points of the outermost Islands and dry reefs.
3. Then, we draw a straight line connecting these points with a
limitation that each line should not exceed more than 100 nautical
miles.
4. Next limitation to the drawing of the straight line. The resultant
figure or the straight line as drawn should, however, not depart
appreciably from the natural configuration of the archipelago.
Notice in this drawing, this is more or less the configuration of our
archipelago, so the straight lines do follow the natural configuration
of the archipelago.
5. Finally, in lieu of the consequent enclosure of the straight lines of
bodies of water, the UNCLOS also puts another limitation. The
enclosed water, however, should not exceed the ratio of land to
mass which should be 1:9 maximum.
Q: So, how then will it comply if its shape is very unique in a sense
that it’s really more than 1:9?
Well, you define your bays. Because you are required to draw, you
are given the deadline your straight baseline.
The delimitation of our baseline only determines the zones but
not necessarily the territory.
Magallona, et al v. Ermita, et al
Magallona questioned the baseline law, RA 9255 because according to
him, it restricted or reduced the territory of the Philippines. It was,
according to him, no longer consistent with our historic or legal claims.
But, the Supreme Court said that the drawing of the baseline is not
actually determinative of the territory of the State. It is just important
in determining the maritime zones.
In fact, in our RA 9255, we did not renounce or abandon our claim over
the Scarborough Shoal or Panatag Island which happens to be outside.
But according to RA 9255 and so as to manifest that we are not
abandoning our claim over these Islands, we assert that these Islands
shall be called Regime of Islands because it is really possible for a State.
The court feared that delimitation of our baseline only determines the
zones but not necessarily the territory. It could be that as a Philippine
archipelago, we declared that “territories over which the Philippines has
authority or jurisdiction.” So that includes other Islands even outside the
Philippine Archipelago, including Spratlys, Scarborough Shoal and
Sabbah claims.
You know of course what triggered everything. China drew 9-dash. In
2013, they added one more dash to be closer to Taiwan. They are not
just exercising just sovereign rights, they are claiming jurisdiction —
Chinese Jurisdiction.
Important: Do a research on the claim of the Philippines over the
Spratlys Islands. This may come out in the exam. (But since he said that
the exam will be all MCQ, I don’t know how exactly he will ask this.
Maybe bonus essay question)
4|U N I V E R S I T Y O F S A N C A R L O S
Historic claim is not our main argument.
We cannot argue historic claim because China became civilized first
before we did. We argued that all parties to that convention had
respective historic claims over respective territories. But when they
signed and became parties to the UNCLOS, defining the sovereign right
of coastal states over EEZ, without making any reservation – tantamount
to waiving these historic claims and rights over specific territories.
Yielding, therefore to the regime of EEZ. This is a strong argument.
TERRA NULLIUS
TWO KINDS OF TERRA NULLIUS:
1. Never been appropriated by any State – never been discovered or
occupied
2. After having been discovered, the discoverer failed to consummate
the inchoate right over the discovered territory.
After a period of time, failure to effectively occupy the territory, although
International Law has not provided us with a definitive period of time
depending on the circumstances, would also make the territory a terra
nullius.
After WWII, no one was occupying there in the concept of territorial
sovereignty as formulated by Max Huber.
LOW WATER MARK METHOD
LOW WATER MARK METHOD
Assuming that this is a non-archipelagic State. We follow the Low water
mark here.
Q. If there is an indention, are you going to draw a straight line
or are you going to follow the natural shape of the indention?
That is why we have the concept of a bay. The basic rule is that if the
two points of the mouth of the bay is more than a semi-circle, then it is
now considered a bay and that is where you determine the distance
between the two points of the mouth of the bay during low tide. Still
following the low water mark.
If the points extend to more than 24 nautical miles
You don’t connect a straight line. But you have to look for that point
where the distance would be 24nm. That is where you draw an
imaginary straight line. You look for a point where the distance would
be 24 nm or less.
But if the distance between the two points of the mouth of the bay is
less than 24 nm or if it is not a semi-circle
You don’t have to draw inward but you can already draw your straight
line. You begin computing your 12 nm from the low water mark.
Island v. Rock
Important thing, especially in understanding the claim over the Spratlys,
you have to understand the concept of an Island and a Rock which rock
may be a High Tide Elevation (HTE) or a Low Tide Elevation (LTE).
A. Island – presupposes that it is capable of sustaining human life or
that it is habitable. Can be used for purposes of having habitation
or has its own economic life.
B. Rock – Incapable of habitation.
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH – 407 A.Y. 2015-2016
If it is an island like any archipelago for that matter, is entitled to a
Territorial sea. It is also entitled to EEZ. If it is just a rock, and a High
Tide Rock, it is entitled to only a Territorial sea, but no EEZ of its own.
If it is a Low Tide Elevation, then it is considered part of the Continental
Shelf, therefore, no Territorial Sea of its own, no EEZ, and cannot be
appropriated or cannot form part of the territory of any State.
Summary:
1. Island – entitled to a territorial sea and EEZ.
2. High Tide rock – entitled only to a territorial sea.
3. Low Tide rock – considered part of the continental shelf. Thus, no
territorial sea nor EEZ and cannot form part of the territory of any
State.
Distinguish High Tide Elevation from Low Tide Elevation
A. THE – During high tide, you can still see the rock. It has its own
Territorial sea, but no EEZ compared to an Island.
B. LTE – It appears only during low tide.
A LTE rock forms part of the continental shelf
If there is an LTE, it must be part of a continental zone. Under UNCLOS,
if you check the shape of the continent of a State, the LTE really forms
part of the State.
You will notice that it LTE is impossible that it will not be part of the
continental shelf. It is also not part of the seabed since nothing will
protrude there. In UNCLOS, LTE shall be considered as part of the
continental shelf.
This is what happened to Spratly Islands. Imagine Palawan, islands and
islets — HTE and LTE. The LTE forms part of the continental shelf. This
is a good argument for the Philippines. If under UNCLOS, LTE is under
the continental shelf, and therefore, governed by continental shelf
regime, as part of EEZ, we have the exclusive right to construct artificial
Islands, installations and structures for purposes provided for under
Article 56 which is exploitation of non-living resources in the seabed,
marine scientific research, protection and preservation of marine
environment and other economic purposes.
EXCLUSIVE ECONOMIC ZONE
Art. 60 - Artificial islands, installations and structures –
The coastal State shall have the exclusive right to construct and to
authorize and regulate the construction, operation and use of:
(a) Artificial islands
(b) Installations and structures for the purposes provided for in
article 56 (exploitation of non-living resources in the seabed,
marine scientific research, protection and preservation of marine
environment) and other economic purposes.
The coastal State shall have exclusive jurisdiction over such artificial
islands, installations and structures, including jurisdiction with regard to
customs, fiscal, health, safety and immigration laws and regulations.
Bretch: Under Article 60 (2), the coastal state shall have exclusive jurisdiction
over artificial islands. There is an extent of jurisdiction but for a specific purpose.
In this case, only as applicable to artificial islands, installations and structures.
CONTINENTAL SHELF
Art. 80 – On Artificial islands, installations and structures on the
continental shelf. Article 60 applies mutatis mutandis to artificial islands,
installations and structures on the continental shelf.
We are studying the Spratly Islands, LTEs, and therefore forming part
of the EEZ. We found out that there were LTEs actually occupied by
China and where artificial islands have been built. If that is the case, I
think we have a very strong argument applying Article 60 at least for
EEZ. We may also include continental shelf because Extended
Continental Shelf may extend up to 350 n.m. It will cover everything. If
we only apply EEZ regime, only 80% of Spratly Islands will be covered
by our claim. If we argue this way, the Philippines has a good chance.
5|U N I V E R S I T Y O F S A N C A R L O S
Q. Is it not conflicting to our claim that we did not include the
Spratlys in drawing our baseline?
Maybe, it will be a disputable delineation considering that the
international community knows that there is still a dispute involving the
Spratly Islands. Also, if you say Philippine Archipelago, the exercise of
jurisdiction will be limited to it. We are just saying that although not part
of our territory, we exercise rights over the Spratly Islands.
Problem:
X, an American, was in possession of marijuana, while on board M/V
Francois, a vessel registered in France, and while the vessel was in
British internal waters. When accosted by Y, a Filipino captain of the
vessel, X killed Y in the upper deck of the vessel.
A. Which court/s has/have jurisdiction over the crime/s committed on
board M/V Francois. Explain your answer/s.
B. Would your answer/s be the same if M/V Francois were in the
territorial sea of UK? Why or why not?
C. Will your answer/s be the same if the case involved a Naval ship of
France? Why or Why not?
First Question:
UK because the case happened inside Great Britain’s Internal Waters.
The State has complete jurisdiction over the activities in its internal
waters. The same way that a State has jurisdiction over all crimes
committed over its territory of land mass.
Bretch: The idea of whether it will prejudice the Sea’s Peace, Good Orders and
Security (PGS) of the coastal state – that is applicable only to crimes committed
on board the vessel in the territorial sea. In the case here, this happened in the
internal waters. A distinction must be made.
Second question:
The application of the French Rule and English Rule would be relevant
only if the case is to be resolved outside the regime of UNCLOS. Their
application would be of no consequence because the outcome would
still be the same.
Under the English Rule, the State will exercise jurisdiction over the crime
committed on board a vessel unless it pertains to the internal matters
of the state. French Rule would say that it would not exercise jurisdiction
over the crime committed on board a foreign vessel unless the act will
affect the peace and order of the coastal state. For the UNCLOS, it has
a specific provision on the matter which is actually an application of both
the French Rule and the English Rule.
Territorial Sea: Criminal jurisdiction on board a foreign ship (Art. 27)
The criminal jurisdiction of the coastal State should not be exercised on
board a foreign ship passing through the territorial sea to arrest any
person or to conduct any investigation in connection with any crime
committed on board the ship during its passage, save only in the
following cases:
(a) If the consequences of the crime extend to the coastal State;
(b) If the crime is of a kind to disturb the peace of the country or the
good order of the territorial sea;
(c) If the assistance of the local authorities has been requested by
the master of the ship or by a diplomatic agent or consular officer
of the flag State; or
(d) If such measures are necessary for the suppression of illicit traffic
in narcotic drugs or psychotropic substances.
TN: Art. 27 does not apply to foreign ships coming from internal waters.
Important: It would be impressive to use Article 27 rather than either
English Rule or the French Rule. These two only developed because the
UNCLOS came later in 1982. It was signed in December 10, 1982 in
Jamaica and entered into force in 1994. Before that, there was yet no
UNCLOS. The application of international disputes on the matter is either
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH – 407 A.Y. 2015-2016
the English Rule or the French Rule. I am not saying that they are
irrelevant. They are, however, already manifested in Article 27.
You must critically think of the facts of the problem. What
about possession of marijuana, aside from murder?
First consideration. Is possession of marijuana illegal? Assuming that it
is illegal, is it a crime that would have consequences reaching the coastal
state? Second, would it disturb the peace and good order of the coastal
state?
In the earlier case decided by the Supreme Court during the American
Time (around 1920s or 1930s), the SC distinguished between possessing
of opium and smoking it.
A. If only possession –the consequences will not necessarily reach
the coastal state. Definitely, this is not the crime so great that it
will disturb the peace.
B. But if the opium was smoked – The consequences will reach the
State. In the bar exam, the suggested exam is really this.
Q. But how about Section (d) which states “if such measures
are necessary for the suppression of illicit traffic in narcotic
drugs or psychotropic substances.”
Take note, it states “traffic.” Not just possession, unless, such
possession is by bulk so it is necessarily intended for trafficking.
INNOCENT PASSAGE
INNOCENT PASSAGE
Territorial Sea, Article 19 UNCLOS
1. Passage is innocent so long as it is not prejudicial to the peace,
good order or security of the coastal State. Such passage shall
take place in conformity with this Convention and with other rules
of international law.
2. Passage of a foreign ship shall be considered to be 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:
Paraphrased: threat or use of force, weapons exercise, espionage,
launching or landing of or other military device, violation of customs,
fiscal, immigration or sanitary laws, wilful and serious pollution, fishing,
research or surveying activities, interfering with communications or
other facilities or “any other activity not having a direct bearing on
passage.”
Breadth (Art. 3)
Up to 12 nautical miles from baseline.
Measurement – baseline (Art. 5)
Except where otherwise provided in this Convention, the normal baseline
for measuring the breadth of the territorial sea is the low-water line
along the coast as marked on large-scale charts officially recognized by
the coastal State.
LEGAL BASIS OF THE PHILS CLAIM OVER THE SPRATLYS
LEGAL BASIS OF THE PHILS CLAIM OVER THE SPRATLYS
1. Discovery and occupation by Tomas Kloma sometime in
1953. While the Spratlys Island had been previously occupied by
other states notably China and Japan, there is an argument that
after Japan lost in the WWII in the Pacific, they were forced to
abandon their hold over the Island and that was the time that
Tomas Kloma discovered the Spratlys Islands and we effectively
occupied it by making the Kalayaan Islands P art of the Municipal
territory of Palawan. Spratlys became terra nullius after Japan
abandoned the Island.
6|U N I V E R S I T Y O F S A N C A R L O S
2. Continental Shelf Regime and Extended Continental Shelf
Regime. We have learned that a continental shelf of a coastal
state can reach up to 200 nautical miles where the slope of that
shelf drops earlier or before reaching 200 miles, that is the regular
continental shelf. And where the slope of that shelf extends
farther than 200 nautical miles which is the EEZ, then it can reach
as far as 350 nautical miles or 100 nautical miles from the isobath
of 2500 meters.
This is important because computing the continental shelf
from Palawan, the right of the Philippines could cover the
entire Spratlys Island. If we make use of the 200 nautical
miles, we could only cover up to 80%. If we insist on the 350
nautical miles, then we have exclusive rights over low tide
elevations in the islands.
It is important to distinguish an island, a rock and a low tide
elevation. The difference is their nature.
An island is capable of habitation or has it an economic life of
its own. If not capable of habitation, it must be a rock at the
very least. An island is entitled to 12 nautical miles territorial
sea and EEZ of 200 nautical miles.
Two kinds of rock:
1. If it appears during high tide and low tide, it is a rock
under UNCLOS. This is entitled to 12 nautical miles
territorial sea but not entitled to EEZ.
2. If it disappears during high tide, then it is not a rock but
a low tide elevation. Not entitled to territorial sea and
EEZ.
What is the treatment of international law on low tide
elevations?
It forms part of a continental shelf governed by the continental shelf
regime. There are low tide elevations in Spratlys Islands. That is why
Philippines insists that Spratlys forms part of our continental shelf.
CONTINENTAL SHELF REGIME
CONTINENTAL SHELF REGIME
Continental Shelf
Art. 77- Rights of the coastal State over the continental shelf
1. The coastal State exercises over the continental shelf sovereign
rights for the purpose of exploring it and exploiting its natural
resources.
Bretch: You notice that in the EEZ, there is also such pronouncement. So
there seems to be an overlap. But experts in UNCLOS said that the moment
we talk about sovereign rights over the natural resources in the continental
shelf, it should be governed by the continental shelf regime.
Why is this important to decide if covered by continental shelf regime or
EEZ? Refer to the third Right. Also, EEZ should be claimed that it is yours.
In continental shelf, you don’t have to claim it. No need for proclamation.
2. The rights referred to in paragraph 1 are exclusive in the sense
that if the coastal state does not explore the continental shelf or
exploit its natural resources, no one may undertake these activities
without the express consent of the coastal State.
Bretch: This is different from EEZ. In EEZ, the sovereign rights pertain only
to the superjacent waters. Fishing rights in other words. If the coastal state
fails to exploit its natural resources in EEZ, they are mandated in UNCLOS to
share the natural resources in the superjacent waters with other states
through agreements. Whereas, in continental shelf, whether you exploit or
not, you will not lose your right over it.
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH – 407 A.Y. 2015-2016
3. The rights of the coastal State over the continental shelf do not
depend on occupation, effective or notional, or on any express
proclamation.
Bretch: We shouldn’t be faulted if we have not occupied this low tide
elevations in the Spratlys because this is part of our continental shelf.
4. The natural resources referred to in this Part consist of the mineral
and other non-living resources of the seabed and subsoil together
with living organisms belonging to sedentary species, that is to say,
organisms which, at the harvestable stage, either are immobile -
seabed or are unable to move except in constant physical seabed
or the subsoil.
Art 78. – Legal status of the superjacent waters and air space
and the rights and freedoms of other States.
1. The rights of the coastal State over the continental shelf do not
affect the legal status of the superjacent waters or of the air space
above those waters.
2. The exercise of the rights of the coastal State over the continental
shelf must not infringe or result in any unjustifiable interference
with navigation and other rights and freedoms of other States as
provided for in this Convention.
HIGH SEAS
HIGH SEAS
Beyond 200 nm from the base line. May be used freely by ships of all
nations (including land-locked states)
“Freedom on the high seas” includes: freedom of navigation, freedom
of fishing, freedom to lay submarine cables and pipelines and freedom
to fly over the high seas. These freedoms are however subject to certain
conventions and agreements.
What law governs the high seas?
As a rule, ships in the high seas are governed by:
1. International law, and
2. Law of the flag state – refers to the nationality of the flag which is
determined by the place of registration.
TN: A ship can only use one flag
For acts committed on board vessels, remember that no state can
exercise exclusive jurisdiction in the high seas. This is why the
rule/nexus applied is the flag state rule.
So in the studying the high seas, take note of the rules governing
interference by warships or naval ships with merchant vessels of another
state of the high seas.
Why is this important?
Because as a rule, no state can exercise jurisdiction over ships and
vessels in the high seas. There is only limited exercise of jurisdiction.
“Flags of Convenience”
Countries that allow registration of a ship for a fee
Interference (by warships) with merchant ships of another
states in the high seas:
1. Stateless ships
2. Hot Pursuit
Bretch: Hot pursuit must be continuous, similar to the hot pursuit in the
arrest of an offender who has just offended a crime. But hot pursuit right
shall only be exercised for as long as the vessel pursued does not enter the
territorial waters of another state.
3. Right of approach
4. Treaties
5. Piracy
7|U N I V E R S I T Y O F S A N C A R L O S
6. Belligerent Rights
7. Self-defense and
8. Authorized by the UN
THE AREA
THE AREA
Consists of the seabed and ocean floor and subsoil thereof beyond
national jurisdiction. This would start from the outer edge of the
continental margin.
What regime governs the area?
It shall be governed by the common heritage of mankind regime. This
means no state may exclusively exploit natural resources.
Projects on natural exploitation must be approved by the International
Seabed Authority. The produce will have to be shared with the rest of
the International Community, giving preference to developing countries.
A. Its resources are to be deemed to be the common heritage of
mankind and no sovereign or other rights may be recognized’
B. The International Seabed Authority makes sure that benefits are
equitably shared by approving plans of works for the exploration
and exploitation of The Area.
Settlement of Disputes
A. States are mandated to settle disputes peacefully in accordance
with UN Charter and shall avail of the various modes of settling
disputes (e.g. negotiation, conciliation, etc)
B. If no settlement, parties to the UNCLOS bound themselves through
ITLOS, ICJ and Arbitral Tribunals (which are all, however, based
on consent because these tribunals have jurisdiction only over
matters “submitted to them by the parties”
The effort to resolve the dispute must be peaceful as mandated by the
UN Charter.
In 2015, the decision of the Permanent Court of Arbitration affirmed that
China had already submitted itself to the jurisdiction of the court.
China argued that the issue is a maritime delimitation over which the
court has no jurisdiction. Only ITLOS or ICJ. But the court said it is not
a delimitation issue. This is an issue that calls for the interpretation of
UNCLOS. And since it requires interpretation, then parties have already
submitted themselves to this compulsory arbitration.
INTERNATIONAL HUMAN RIGHTS LAW
UNIVERSAL DECLARATION OF HUMAN RIGHTS
UNIVERSAL DECLARATION OF HUMAN RIGHTS
This is a soft law.
What is a soft law?
Not readily enforceable norms but this character does not say something
about the importance or the lack of importance of human rights
documents.
When can human right documents become hard law?
Human rights documents are guides for states to pass national
legislations. But, there have been several cases especially under the
auspices of European human rights regime of regional human rights
regime. In Europe, for example, they have a regional human rights
regime where they permit individuals to sue states for human rights
violations.
In other words, while it is a soft law, they end up as hard law in certain
jurisdictions because some states have already affirmed that they are
readily enforceable norms.
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH – 407 A.Y. 2015-2016
Basic principles
th
A. IHRL began in the second half of the 20 century and fully
recognized in the 21st Century under the aegis of UN nad other
international and regional bodies
B. Art 1(3) of the UN Charter, UDHR (1948)
C. Human rights issues ceased to be mere domestic matters as is
the case before the 21st century; States have realized that it is the
“respect of the inherent dignity and of the equal and inalienable
rights of man” which is the foundation of freedom, justice, and
peace in the world
D. Duty to protect aliens in foreign territory under the Doctrine of
State Responsibility helped develop international human rights
law
E. IHRL v. IHL
F. The study of IHRL deals with the scope and limitations of HR vis-
a–vis authority of States to maintain order in society.
The three (3) “Generations” or Categories
UN Universal Declaration of Human Rights
1. Civil and Political Rights
2. Economic, Social and Cultural Rights
Opinion of Publicists
3. Right to peace, Self-Determination, common heritage of mankind
principle, environment, development, minority rights
International Bill of Rights
UDHR (1948)
Two International Covenants
These two international covenants of 1976 are also part of “International
Bill of Rights”
1. ICCPR (1976) with two Optional Protocols: (1) Grievance Procedure
and (2) Abolition of Death Penalty
2. ICESCR (1976)
Read the text of the UDHR and ICCPR. If you have time, also ICESCR.
When you study ICCPR, be conscious of the rights that are derogable
and non-derogable (Article 4).
Article 4 of the ICCPR declares the non-derogable rights.
Be familiar with them. Derogable rights may be derogated in times of
national emergency and other special circumstances recognized by
ICCPR.
INTERNATIONAL ENVIRONMENTAL LAW
INTERNATIONAL ENVIRONMENT LAW
INTERNATIONAL ENVIRONMENTAL LAW
International Environmental Law is a fairly recent branch of international
law. It is related to human rights law because one of the human rights
recognized under ICCPR is the right to a healthy environment.
While it is a new regime already covered under CIL, states may be held
liable for breach of environmental law. As seen in the Trail Smelter case,
the arbitration case already applied “sic utere tuo ut alienum non
laedas.”
A. Now claimed to be a part of human rights in view of the threats
to environment brought about by industrialization and
development
B. Breach of international environmental law may amount to breach
of international obligations and can trigger “state responsibility”
C. Origin is the civil law maxim “sic utere tuo ut alienum non laedas”
D. The “Trail Smelter case” (US v. Canada, 1941)
8|U N I V E R S I T Y O F S A N C A R L O S
Trail Smelter case
The smelting occurred in Canada sharing borders with USA specifically
the State of Washington. This sulfur dioxide resulted to the damage of
crops and trees. It lasted for 13 years of damage. When USA filed a
claim, Canada submitted itself to arbitration.
The arbitration ruled against Canada because these factories on
smelting are operating with the knowledge of the Government of
Canada. Under the circumstances, Canada could have implemented
mitigating measures at the very least, if not to prevent it, which Canada
did not do. The arbitration tribunal said there was omission on the part
of Canada to prevent the fumes consisting of sulfur dioxide from
reaching the territory of another state. This is an application of “sic utere
tuo ut alienum non laedas.”
1972 Stockholm Declaration on the Human Environment
Stockholm Declaration (Principle 21)
The participants agreed on a declaration which consists of several
declarations of norms governing environmental law. One of which is
Principle 21 on the principle of state responsibility that no state shall
permit its own territory to cause damage to the territory of another. This
is affirmed as part of CIL.
Articles 192 and 194 of the UNCLOS
Article 192 deals with the duty to protect and preserve marine
environment and 194 where duty not to cause damage by pollution to
other states of the UNCLOS III. Articles 192 and 194 deal with marine
environment.
Rio Declaration on Environment and Development (1992)
Agenda 21 (1992); United Nations Framework Convention on
Climate Change (1992)
Rio Declaration is a reiteration of Stockholm Declaration but there are
additions. Convention on Biological Diversity is also an important
convention.
ICJ Opinion on the Legality of the Threat or Use of Nuclear
Weapons
That states must ensure that activities within their jurisdiction and
control respect the environment of other states or of areas beyond
national control is now part of the corpus of international law relating to
the environment.
ICJ included in deciding whether the use of nuclear testing will be
permitted or prohibited the effect on the environment. They have
declared that the principle of state responsibility for environmental law
harm is already part of CIL.
Gabcikovo-Nagymaros Project (Hungary/Slovakia IJC case)
ILC Draft Articles on Prevention of Transboundary Harm from
Hazardous Activities (2001)
Another manifestation of the need to discourage states not to cause
transboundary harm.
Kyoto Protocol (1997/2005)
Established legally binding obligations for developed countries to reduce
their greenhouse gas emissions as it sets emission targets for developed
states. The last target was to be complied with within the period of
2008-2012.
STRICT V. FAULT LIABLILTY
STRICT V. FAULT LIABILITY
What liability regime applies to environmental laws?
Strict liability
Scholars would argue that we should observe Strict Liability when we
talk about hazardous activities (IE. Transportation of oil or use of nuclear
weapons.)
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH – 407 A.Y. 2015-2016
Q. Is burning of forest a hazardous activity?
Burning of forest when done in a small-scale level may not be considered
as a hazardous activity because it can be regulated.
Fault liability
Fault Liability is also forwarded by some scholars in particular when
there is a lex specialis like if we are talking about transboundary harm.
You will notice that 2001 Articles on Prevention of Transboundary Harm
suggests the requirement due diligence.
Due diligence means that if the State has shown that it has exerted
efforts to at least prevent the transboundary, even if despite that effort,
transboundary harm still happened, then it becomes an obligation not
of result but that of conduct.
According to Shaw, opinions of courts do not clarify which of the two
liability regimes would be used.
Trail Smelter case
“No State has the right to use or permit the use of its territory is such a
manner as to cause injury by fumes in or to the territory of another or
the properties or persons therein, when the case is of serious
consequence and the injury is established by clear and convincing
evidence.”
The concern here really is that there is a principle that States have the
permanent sovereignty over its natural resources. Therefore, it has
every right to utilize its resources especially that the right to
development is a recognized norm. But the utilization of resources might
result to over exploitation which is the tragedy of the commons.
The permanent sovereignty over natural resources should be balanced
with the right of the people to a healthy environment. So the study of
the International Environmental Law is the delicate balancing of the right
to development and the right to a healthy environment.
Principle of State Responsibility
Principle 21 of Stockholm Declaration:
“States have, in accordance with the Charter of the United Nations and
the principles of international law, the sovereign right to exploit their
own resources pursuant to their own environmental and developmental
policies, and the responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the environment of other
States or of areas beyond the limits of national jurisdiction.”
Bretch: It doesn’t have to be activities in the territory. If they have
control in the activity even if outside of the territory, then the State can
be held liable. Example, in relation to UNCLOS, the coastal state has the
exclusive jurisdiction with respect to the establishment or construction
of artificial islands or installations in its EEZ.
This may only be a declaration of a norm but this have been affirmed
many times by tribunals.
PRINCIPLE OF INTRA AND INTER-GENERATIONAL EQUITY
PRINCIPLE OF INTRA- AND INTER-GENERATIONAL EQUITY
Principle 3. Rio Declaration
The right to development must be fulfilled so as to equitably meet
developmental and environmental needs of present and future
generations. This is related to the Common but Differentiated Principle.
COMMON BUT DIFFERENTIATED PRINCIPLE
Principle 7, Rio Declaration
“In view of the different contributions to the global environmental
degradation, States have common but differentiated responsibilities.
The developed countries acknowledged the responsibility that they bear
in the international pursuit of sustainable development in view of the
pressures their societies place on the global environment and of the
technologies and financial resource they command.
9|U N I V E R S I T Y O F S A N C A R L O S
The level of obligation shouldn’t be the same and universal to all because
we consider the capability of the state. We demand higher from those
who can because of technology and financial capabilities.
Conservation of Resources
Principle 8. Rio declaration
States must “reduce and eliminate unsustainable patterns of production
and consumption and promote appropriate demographic policies.”
This is a restatement of the principle of sustainable development which
was pronounced by Judge Weeramantry in the Gabchikovo case as part
of CIL.
This means that we utilize and exploit our natural resources not only to
enable us to enjoy the environment at the present generation but to
also make sure that the future generations will also have enough when
the time comes.
Integration
Principle 4. Rio declaration
In order to achieve sustainable development, environmental protection
shall constitute an integral part of the development process and cannot
be considered in isolation from it.
How do you integrate environmental protection in your
development processes?
You are required to put mechanism whereby the process of development
to take environmental consideration. This is through the requirement of
environmental impact assessment.
Example: Coal Fire Power Plant Company has to comply with
environmental impact assessment.
PRECAUTIONARY PRINCIPLE
Precautionary principle
Principle 15. Rio declaration
In order to protect the environment, the precautionary approach shall
be widely applied by States according to their capabilities. Where there
are threats of serious or irreversible damage, lack of full scientific
certainty shall not be used as a reason for postponing cost-effective
measures to prevent environmental degradation.
Example: If state A permits a particular activity that involves exploitation
its natural resources and if a group complains that the project will result
to a damage to the environment, the government cannot say that “well
where is your proof?”
Regardless of whether there is scientific certainty of a damage, the State
permitting the use of its natural resources shall not postpone cost-
effective measures to prevent environmental damage.
POLLUTER PAYS PRINCIPLE
POLLUTER PAYS PRINCIPLE
Principle 16, Rio Declaration
It embodies the idea that “those who create environmental damage
should pay for its remediation or clean-up.” It is understood that
requiring the polluters to bear the full cost of their pollution will provide
an incentive for the minimization of pollution production
You must not take this literally. This is applicable in the context of
climate change.
Example: Read the UNFCC and the Kyoto Protocol. The basic idea is that
when we reduce carbon emission, the reduction of emission is not
uniform among all states.