Guardian of the SEA

A Report on UN Convention on the LAW OF THE SEA

(UNCLOS)

Environmental Law and Natural Resources

Introduction

The law of the sea is considered as one of the oldest disciplines in international law. It is primarily concerned with the
rules which bind states in their international relations concerning maritime matters which are basically molded by the
political, geographical and economic relations of states. The UNCLOS is the most comprehensive attempt at creating a
unified regime for governance of the rights of nations with respect to the world's oceans. The treaty addresses a
number of topics including navigational rights, economic rights, pollution of the seas, conservation of marine life,
scientific exploration, piracy, and more.

The Law of the Sea Convention defines the rights and responsibilities of nations with respect to their use of the
world's oceans, establishing guidelines for businesses, the environment, and the management of marine natural
resources.

What prompted the world to craft one of the oldest disciplines in the international law?
 The law of the sea developed from the struggle between coastal states,
who sought to expand their control over marine areas adjacent to their
coastlines.
 The oceans had long been subject to the freedom of-the-seas doctrine - a
principle put forth in the seventeenth century essentially limiting national
rights and jurisdiction over the oceans to a narrow belt of sea surrounding
a nation's coastline.
 The remainder of the seas was proclaimed to be free to all and belonging
to none. While this situation prevailed into the twentieth century, by
mid-century there was an impetus to extend national claims over
offshore resources.
 In October 1946, Argentina claimed its shelf and the continental sea above
it. Chile and Peru in 1947, and Ecuador in 1950, asserted sovereign rights
over a 200-mile zone, hoping thereby to limit the access of distant-water
fishing fleets and to control the depletion of fish stocks in their adjacent
seas.
 After the Second World War, the international community requested that
the United Nations International law Commission consider codifying the
existing laws relating to the oceans.
UNCLOS I

Recognizing the conflicts that were resulting from the current regime, the General Assembly adopted a resolution
called for the convening of the UN Convention on the Law of the Sea in Geneva from February 24 until April 29, 1958
which 86 nations participated. The meeting produced four separate conventions:

1) the Convention on the Territorial Sea and the Contiguous Zone

2) the Convention on the High Seas
3) the Convention on Fishing and Conservation of the Living Resources of the High Seas
4) and the Convention on the Continental Shelf

The Convention also produced an Optional Protocol of Signature Concerning the Compulsory Settlement of Disputes
(provides for the compulsory jurisdiction of the International Court of Justice, or for submission of the dispute to
arbitration or conciliation).
While UNCLOS I saw a significant development in the international legal regime governing the oceans, it left open the
important issue of breadth of territorial waters.

UNCLOS II

In an attempt to deal with the issues that remained unresolved after UNCLOS I, the General Assembly called for a
second United Nations Convention on the Law of the Sea (referred as UNCLOS II). The parties met for just over a
month in early 1960 with the objective of settling the question on the breadth of the territorial seas and fishery limits.
While the conference adopted two resolutions, the parties were unable to come to consensus on the issues at hand.

UNCLOS III
Frustrated by the continuing inconsistency in the ocean governance regime, Malta's ambassador to the United
Nations, Arvid Pardo, called upon the
General Assembly to take action and
called for "an effective international
regime over the seabed and the ocean
floor," that clearly defined national
jurisdiction. One month later, the
General Assembly adopted resolution
2467 A (XXIII) and resolution 2750 C
(XXV), which created the Committee on the
Peaceful Uses of the Sea-Bed and the
Ocean Floor beyond the Limits of
National Jurisdiction and called for the
convening of a third Law of the Sea
meeting to be held in 1973. The
deliberations lasted for nine years, saw the
participation of 160 nations, and concluded in 1982 with the United Nations Convention on the Law of the Sea, which
is now commonly referred to as simply "UNCLOS" or the Law of the Sea Treaty. The treaty contains 320 articles and 9
annexes. It synthesizes and builds upon the agreements that were developed at the first conference. The agreement
addresses a myriad of issues including navigational rights of ships and aircraft, limits on the extension of national
sovereignty over the oceans, environmental protection of the oceans, conservation of living resources and mining
rights.

Definition of terms

1. Authority - means the International Seabed Authority

2. Activities in the Area - means all activities of exploration for, and exploitation of, the resources of the Area;
3. "pollution of the marine environment" - means the introduction by man, directly or indirectly, of substances
or energy into the marine environment, including estuaries, which results or is likely to result in such
deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine
activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water
and reduction of amenities;
4. Dumping

- any deliberate disposal of wastes or other matter from vessels, aircraft, platforms or other man-
made structures at sea;
- any deliberate disposal of vessels, aircraft, platforms or other man-made structures at sea

5. States Parties - means States which have consented to be bound by this Convention and for which this
Convention is in force.

I. Types of Waters Recognized Under The Convention

The following are the seven types of waters with varying regimes
recognized under the Convention

a. Internal Waters – All waters on the landward side of the baselines of

the territorial sea from which the width of the territorial sea is
measured. Thus, internal waters consist of ports, harbors, rivers,
lakes, canals, and all waters on the landward side. The baseline is
normally the low-water mark along the shore. Under Article 2 of the
Convention, internal waters fall under the sovereignty of the coastal
state; therefore, the coastal state has the right to prohibit entry into
its ports by foreign ships.
b. Territorial Sea - This refers to the waters adjacent to the coasts or a
state, excluding the internal waters in bays and gulfs, which do not
form part of the open sea. The Convention fixes the maximum
breadth of the territorial sea a state may claim at 12 miles seaward
from the baseline.
c. Archipelagic Waters – All waters inside the archipelagic baselines
are archipelagic waters. The archipelagic state exercises sovereignty
over said waters as stipulated in Part IV of the Convention.
d. Contiguous Zone - The Convention recognizes the right of a state to enforce its customs, fiscal, immigration,
and sanitary laws in a contiguous zone adjacent to the seaward limit of the territorial sea, which can extend
 as far as 24 miles from the baseline. The freedoms of navigation and over flight, as well as other
internationally lawful uses of the seas related to these freedoms, including the right to lay submarine cables
and pipelines, are the same in the contiguous zone as on the high seas.
e. Exclusive Economic Zone (EEZ) - The Exclusive Economic Zone (EEZ) is the zone extending seaward from the
outer limit of the territorial sea out to 200 miles from the baseline. The coastal state has sovereign rights
within this zone for the exploration and exploitation of living and non-living resources, establishment and use
of artificial islands, installations and structures, and the preservation of the marine environment.
The freedoms of navigation and over flight, as well as other internationally lawful uses of the seas
related to these freedoms, including the right to lay submarine cables and pipelines, are the same in EEZs
as on the high seas.

Foreign states may also undertake military activities in EEZs, with due regard for the rights and duties
of the coastal state. Foreign vessels fishing for straddling stocks and highly migratory species in the
portions of the high seas adjacent to EEZs must have due regard for the impact their actions might have
on coastal state interests.

f. Straits Used for International Navigation – are those between one area of the high seas zone and another
part of the high seas or an exclusive economic zone through which all ships and aircraft have the right of
transit passage.
g. High Seas– are all parts of the sea that are not included in the exclusive economic zone, the territorial sea, or
the internal waters of a state or in the archipelagic waters of an archipelagic state. It is open to all states.

II. Rights of the Different Types Of Regimes

III. UNCLOS and the Philippines’ National Territory

The Philippines Archipelagic Doctrine?

The concept of Archipelagic Doctrine as stated under the second sentence of the 1973 Philippine Constitution
is that “the waters around, between, and connecting the islands of the archipelago irrespective of their breadth
and dimensions, form part of the internal waters of the Philippines.” This is intended to project the idea that the
Philippines is an archipelago and bolster the archipelagic concept which the Philippines, together with Indonesia,
Mauritius, Fiji and other archipelago states similarly situated had steadfastly espoused in the Convention.
Likewise, the second sentence has been lifted from the third whereas clause of RA No. 3046 as amended by RA
No. 5446.

Extent of its territorial and internal waters

The Philippine position was embodied in RA No. 3046 as amended by RA No. 5446, which declared that:
a. All the waters within the limits set forth in the Treaty of Paris of December 10, 1898 and the Treaty of
Washington of November 7, 1900 both between Spain and US; and the Treaty concluded between US and Great
Britain on January 2, 1930, have always been regarded as part of the territory of the Philippines.
b. All the waters around, between and connecting the various islands of the Philippine Archipelago, irrespective
of their width or dimension, have always been considered as necessary appurtenances of the land territory,
forming part of the inland or internal waters of the Philippines.
c. All the waters beyond the outermost island of the archipelago but within the limits of the boundaries set
forth in the afore-mentioned treaties comprise the territorial sea of the Philippines.
 d. The baselines from which the territorial sea of the Philippines is determined consist of straight lines joining
appropriate points of the outermost islands of the archipelago.
Extent of the Philippines’ Exclusive Economic Zone (EEZ) and the country’s rights?

Under Presidential Decree No. 1599 (1978), the Exclusive Economic Zone of the Philippines has an estimated
area of 652, 800 sq. nautical miles. The Philippines’ exercises sovereign rights in its EEZ to explore and exploit,
conserve and manage the living or non-living, renewable and non-renewable natural resources of the seabed,
including the subsoil and the superjacent waters, and with regard to other activities for the economic exploitation
and exploration of the resources of the zone, such as the production of energy from the water, currents and
winds.

The Philippines also have exclusive rights and jurisdiction in the establishment and utilization of artificial
islands, offshore terminals, installations, and structures, the preservation of the marine environment, including
the prevention and control of pollution, and scientific research in the EEZ.

Protection of the Marine Environment under UNCLOS

The Convention lays down the fundamental obligation of all states to protect and preserve the marine environment.
It further urges all states to cooperate on a global and regional basis in formulating rules and standards and otherwise
take measures for the same purpose. Coastal states are empowered to enforce their national standards and anti-
pollution measures within their territorial sea. Every coastal state is granted jurisdiction for the protection and
preservation of the marine environment of its exclusive economic zones (EEZs). Such jurisdiction allows coastal states
to control, prevent and reduce marine pollution from dumping, land-based sources or seabed activities subject to
national jurisdiction, or from or through the atmosphere. With regard to marine pollution from foreign vessels,
coastal states can exercise jurisdiction only for the enforcement of laws and regulations adopted in accordance with
the Convention or for "generally accepted international rules and standards". Such rules and standards, many of
which are already in place, are adopted through a competent international organization, namely the International
Maritime Organization (IMO).
On the other hand, it is the duty of the "flag state", the state where a ship is registered and whose flag it flies, to
enforce the rules adopted for the control of marine pollution from vessels, irrespective of where a violation occurs.
This serves as a safeguard for the enforcement of international rules, particularly in waters beyond the national
jurisdiction of the coastal state such as the high seas.

There are six main sources of ocean pollution addressed in the UNCLOS (1982):

1. land-based and coastal activities 4. ocean dumping; vessel-source pollution

2. continental-shelf drilling 5. pollution from or through the atmosphere
3. potential seabed mining
What are the steps taken by the Philippines in its duty to uphold the UNCLOS

RIO Earth Summit

- it was heralded as the turning point for global environmental policy. More than one hundred countries came to
the Rio summit, which sought to merge two critical international concerns—environmental protection and
economic development—that had been evolving on different tracks during the 1970s and 1980s. The Earth Summit
yielded two legally binding treaties: the Framework Convention on Climate Change and the Convention on Biological
Diversity.

In response to the commitments made by the Philippines in the 1992 Earth Summit, the Philippine Council for
Sustainable Development (PCSD) was created on September 1, 1992 through Executive Order No. 15. The creation
of the PCSD marked the beginning of the country's systematic pursuit of these national commitments. The PCSD
also stands as among the first mechanisms in the world created for the purpose of following-up national
commitments to the global Agenda 21.

UNEP

The United Nations Environment Programme (UNEP) is an agency of the United Nations that coordinates its
environmental activities, assisting developing countries in implementing environmentally sound policies and
practices. Its activities cover a wide range of issues regarding the atmosphere, marine and terrestrial ecosystems,
environmental governance and green economy. It has played a significant role in developing international
environmental conventions, promoting environmental science and information and illustrating the way those can be
implemented in conjunction with policy, working on the development and implementation of policy with national
governments, regional institutions in conjunction with environmental non-governmental organizations (NGOs).
UNEP has also been active in funding and implementing environment related development projects.

Violations of UNCLOS committed by foreign States against the Philippines

 US “Guardian Ship” grounding on Tubbataha Reef

On January 17, 2013, The USS Guardian ran aground on the UNESCO World Heritage site in the central
Philippines resulting in the total loss of the ship and extensive damage to the protected reef. The USS Guardian, a
wooden-hulled minesweeper, was eventually deemed beyond repair and was cut up and removed from the reef in
an operation that lasted several months.

Unfortunately, after a year of the incident the Supreme Court denied the petition of Writ of Kalikasan filed
by Environmentalist group invoking the principle of sovereign immunity. On the positive note, the court noted
during its deliberations that the case fell within the ambit of Article 31 of the United Nations Convention on the Law
of the Sea (UNCLOS) which held offending states liable for violations of laws and regulations in a coastal state they
had entered. Although US is not a member in the UNCLOS they can still be held liable for the damages on the reef
park.

 Chinese ship grounded in Philippines endangers protected reef, wildlife

On April 8, 2013, barely two months after the US ship incident, the Chinese ship, the F/N Min Long Yu ran
aground on Tubbataha National Marine Park on Palawan Island shortly before midnight April 8. The park is a
UNESCO World Heritage site and home to 500 species of fish and 350 species of coral, as well as whales,
dolphins, sharks, turtles and breeding seabirds. What was shocking to discover was the ship contained
hundreds of boxes of endangered species.

Why should we be concerned of the sea dispute with China?

The Chinese vessel caught for poaching and smuggling was flying a Philippine Flag as a ploy to deceive
Philippine naval patrol which makes it a big problem in enforcing maritime laws. Because of the vast territorial
waters and limited patrols of the country, the Philippines would likely be a preferable maritime access of smuggling
and other illegal activities.

The country is considered as the amazon of the world in terms of marine bio-diversity. It is part of the
countries comprising the “Coral Triangle”, home of diverse species in the sea because of warm sea surface. In a
documentary report in local television network, the camera was able to caught Chinese fishing vessels loaded with
giant sea clamps and precious corals and news every now and then reported about Chinese fishing men caught
poaching endangered sea turtles. It is devastating to see that we value and protect our marine resources especially
those considered as endangered species and yet we cannot imposed the same responsibility to our mighty
neighbor. The South China Sea is the most hotly contested waters on earth, the dispute involving different countries
should be discussed immediately before it is too late. The discussion must focus alone on important environmental
matters such as laying down rules protecting marine resources setting aside territorial ownership, as this issue
would take years and years before countries can compromise and settle.

Do we really need to sacrifice our environment in the name of economic growth and a strong economy in our
respective countries?

References:

http://gcaptain.com/philippines-government-stuck-seeking-compensation-from-u-s-over-guardian-grounding/

http://www.psdn.org.ph/agenda21/rio001.htm

http://securitymatters.com.ph/grounded-chinese-ship-in-tubbataha-raises-varied-concerns-8948/

http://globalnation.inquirer.net/111230/sc-no-writ-of-kalikasan-but-us-liable-for-reefs-damage/#ixzz3GK2QfFVe

http://www.eoearth.org/view/article/156775/

http://www.un.org/depts/los/convention_agreements/convention_historical_perspective.htm