Albert Inocencio 2005-10845 A Critical Synthesis Paper on the UN Convention on the Law of the Sea I.

Background National territory is one of the building blocks of a sovereign state, without which, a sovereign state could not exist. The other requirements are: a permanent population; government; and capacity to enter into relations with other states as described in Article 1 of the Montevideo Convention on Rights and Duties of States in 1933 1 . Territory is also the basis of a states wealth, resources, and influence. National territory is a geographical region wherein a government has supreme and independent sovereignty and authority over. There are currently some disputes regarding national territories that affect the Philippines, the most recent among them, the Scarborough Shoal claims and the Kalayaan Island Group (KIG) 2, in what seems to be a bid for the resource-rich territories between China, Philippines, and several other countries. The issues stem from confusion generated by the conflict between interpretations of maritime territory from the U.N. Convention on the Law of the Sea (UNCLOS) and the 1987 Philippine Constitution among other local laws and other agreements (bilateral). The article The Maritime Territories and Jurisdictions of The Philippines and the United Nations Convention on the Law of the Sea by Jay L. Batongbacal (The Article), published in Vol. 76, No. 2 of the Philippine Law Journal, 2001, describes the evolution of the concept of maritime territory, from the Treaty of Paris3 to the UNCLOS and its implementation under the 1987 Constitution of the Philippines, as well as the issues that came with it. The main problem is that the implementation of the UNCLOS is being prevented, despite the advantages its implementation will bring. This paper will discuss the strengths and weaknesses of the Philippine stance regarding its implementation of the UNCLOS against its current laws that define its territory. The goal is to be able to provide a suitable comparison of the pros and cons of its implementation, as well as other possible alternatives.

1 2

Malcolm Nathan Shaw, International Law 178 (Cambridge University Press, 2003). Rodolfo Severino, Where in the World in the Philippines? Debating Its National Territory 66-99 (ISEAS Publishing, Singapore, 2011). 3 Treaty of Peace Between the United States of America and the Kingdom of Spain, Dec. 10, 1898, http://avalon.law.yale.edu/19th_century/sp1898.asp accessed Oct. 5, 2012 [hereinafter T.O.P.].

II. Summary of The Maritime Territories and Jurisdictions of The Philippines and the United Nations Convention on the Law of the Sea by Jay L. Batongbacal (Citations omitted) The Article opens with the definition of the UNCLOS, as an internationally recognized legal framework for management of the oceans of the planet that has the support of the majority of nation states. It then describes the history of the Islands of the Philippines, from its colonization by Spain, its sale to the United States of America under the Treaty of Paris, up to its current incarnation as a republic under the 1987 constitution. In the pre-spanish era, there was no concept of national territory in the Philippines. It was only a group of islands with individual village governments, each with its own territories. When the Spaniards arrived, the group of islands was named Islas Filipinas, and only the islands were considered territories, where the maritime zone only encircled the islands up to cannon range, or 3 miles, from the low water mark under the Spanish Law of Waters, as recognized by international law then. When the United States of America purchased the territories controlled by Spain under the Treaty of Paris, the transfer only included islands under Spanish rule, and the irregular rectangles that made up the lines under the Treaty were only to show what islands were sold, and not the waters between them. The Treaty of Washington supports this as the wording referred only to the islands when it included new islands. However, Jones Law identified the same lines in the Treaty of Paris as boundaries, coming into conflict with the treaties themselves. Then, the Convention between the United States of America and Great Britain Delimiting the Boundary Between the Philippine Archipelago and the State of North Borneo came into effect in 1930. It described a line between the Philippine Archipelago and North Borneo, but its effect is only for the islands in between them, and had no mention of the waters being divided into territories. The US still generally followed the treaties of Paris and Washington regarding the maritime territory of the Philippines. The US also had a dispute with Netherlands regarding the island of Palmas, also known as Miangas, near the southern tip of Mindanao. It was located within the Treaty of Paris lines but the intent of the US was only to claim Spanish held lands, according to the letter signed by the US Secretary of State. After gaining independence from the US, with the declaration of independence by US President Thurman, the Philippines adopted the 1935 constitution, where it provided an article for the national territory, in order to avoid confusion with the real boundaries in the north, because the Treaty of Paris lines ended just south of Batanes. It must be noted that again, water is still not considered territory, aside from it being an extension of land. It is important to note that the Philippines simply inherited all of its territory from the US, following the concept of state succession. The Continental Shelf Doctrine, as described in the Truman Proclamation of 1945, was adopted by the Philippines with section 3 of RA 387, which claimed the petroleum resources in the

continental shelf or its analogue in the archipelago, manifesting its interest in its surrounding waters. In an attempt to gain exemption from the proposed rule limiting the extent of territorial sea to a fixed distance when the UN Secretary General sought comments for a proposed convention on the limits of the territorial sea, the Archipelagic Doctrine was declared by the Philippine in a Note Verbale in 1956. It defined the waters around, between, and connecting the different islands of the Philippine Archipelago are national or inland waters, subject to the exclusive sovereignty of the Philippines. As part of that declaration, all of the waters embraced by the Treaty of Paris lines that lie outside the Internal Waters are considered maritime territorial waters without prejudice to the exercise of by friendly foreign vessels of the right of innocent passage. As part of that declaration, high seas cannot exists within the waters comprised by the territorial limits of the Philippines. The continental shelf doctrine was also included in the declaration. There is, however, ambiguity with regards to the difference between internal waters and territorial waters, which is the concern of international community, as it determines whether or not the right of innocent passage applied. Also, the Philippines identified specific functional bases for claiming its territorial waters, as opposed to the normal convention at that time of territorial waters as simply extensions of land territory. The US challenged the Philippines claim, as it is reiterated that the territory inherited from them consisted only of the islands and not the waters. Meanwhile, the international community sought to make the continental shelf doctrine apply equally to islands as to coastal states in the Law of the Sea Conference in 1958. It must be noted that in the 1958 and the 1960 sessions of the UNCLOS, the archipelagic principles were flatly rejected. Despite the setback, the international community accepted the following: baselines are the basis for determining territorial seas, and the territorial sea shall have a fixed width measured from the baselines. Senator Arturo Tolentino introduced RA 3046, An Act to Define the Baselines of the Territorial Seas of the Philippines, where the outermost points of the archipelago were enclosed within straight baselines and declared all waters within the baselines and between the island shorelines as internal waters, legalizing the concept of the Philippines as an archipelago, and the waters between the Treaty of Paris lines and the baselines as territorial waters. In 1968, the Continental Shelf Claim was revised. The issues with the revision were that it was dependent on technology as to the capacity to exploit the natural resources, and that it referred to submarine areas outside the territorial sea, not affecting high seas nor the airspace. When the 1973 Constitution was adopted, it elevated the Archipelagic Doctrine into fundamental law. It unified the country as under the 1935 constitution, the country was a single political unit of geographically fragmented groups of islands separated by intervening waters. On the matter of the KIG, in the 1935 deliberations, it was clearly not part of the national territory. However, during the World War II, it was used by Japan as a staging point to launch attacks from, making it a real threat to national security.

In 1956, it was claimed as private property by Tomas Cloma, naming it Freedomland. While the claim had no government support, it was maintained that the area is subject to exclusive exploitation by Filipino citizens. President Marcos then declared PD 1596, which proclaimed sovereignty over the area as a modified parallelogram, from the Palawan Treaty of Paris line, and declared the KIG as a municipality in the province of Palawan. On the same day, the President issued PD 1599, which declared the Exclusive Economic Zone in conformity to the ongoing 3rd UNCLOS, The latter PD is construed to have amended the former, as the numbering suggests, so it is in effect despite the conflict between them. PD 1599 also came into conflict with RA 3046, when territories that are already subject to the Philippine sovereignty were reduced to merely economic zones, despite the provision that it would not prejudice rights from exercising full sovereignty. The UNCLOS of 1982 created a system of maritime zones based on the baselines: Internal Waters, Territorial Sea (12 nautical miles from Baseline), Archipelagic Waters (following the Archipelagic Doctrine), Contiguous Zone (12 nautical miles from Territorial Sea), and the Exclusive Economic Zone (200 nautical miles from baselines). Each zone has its own conditions, with the most restrictive towards foreign vessels being the Internal waters. It also defined high seas as all other waters not described under maritime zones. It also introduced new special regimes: the right of Transit Passage, right of Archipelagic Sea Lanes Passage, provisions for the management and conservation of fishing in the high seas, encouraging control of marine pollution and protection of marine environment, and regulating marine research. The concept of Archipelago was recognized as an integrated unit as well as the sovereignty of the archipelagic state over the territory described in the Archipelagic doctrine. The compromise was that the archipelagic waters are to be subject to innocent passage and archipelagic sea lanes passage. There was no issue with the EEZ, it had a compensating effect because it increased historical territory, with respect to economic rights, by at least 132,000 nautical miles. The Philippines made several declarations at the signing of the UNCLOS, declaring that: it shall not affect the sovereign rights as successor to the US under the treaties of Paris and Washington, nor shall it impair sovereignty over any territory already under the same, such as the KIG; it shall not be construed to amend existing pertinent laws; archipelagic passage shall not nullify or impair sovereignty nor deprive authority to enact legislation protect sovereignty, independence and security; archipelagic waters are part of internal waters, removing the rights of foreign vessels to transit passage in straits. Many countries protested the declaration, but were mollified on the declaration that the Philippines intends to abide by the Convention. This brought about several issues: the Philippines, after adopting the 1987 Constitution, now has no choice but to abide by the UNCLOS, if the Philippines refuses to comply, other countries may still demand the more onerous obligations; treaties are on the same level as statutes, so they may be challenged before the Supreme Court, which would lead to the problem that, if successfully challenged, the country would have an unenforceable law that it is still required to honor; it is

also agreed that waters within the baselines are considered internal waters, but straits within the archipelagic waters are under the Transit Passage. The 1987 Constitution is flexible enough that if the treaty of Paris and the related agreements are disregarded, there would be no conflict with the UNCLOS. The convention could be used as the basis for for arguments with regards to the exploitation of resources, as the convention does not deal with territory but management of oceans. There are still complication factors with regard to enforceability, especially with the territory disputes regarding the KIG, Sabah, and the Scarborough Shoal still unresolved. The problems are that the KIG is still subject to international law and that the Sabah claim is ambiguous, as is with the Scarborough Shoal. The validity of actions taken outside national territorial waters is always subject to international law, but in practice, the Philippines still has no groundwork to manage existing problems and still relies on inconsistent legal framework to resolve them. In the end, the author concludes that lines on a map are meaningless out at sea. What matters is human activity and how to manage and influence them so as not to diminish the interests and resources of the Philippines and protect them. International norms follow international agreements, not national laws. The UNCLOS decreases the extent of national territory but it cannot be impeded by a bilateral agreement such as the Treaty of Paris; it is the only globally accepted framework with which to pursue an enforceable system of managing issues and problems in the ocean. The Philippines must commit itself to implement what is agreed upon or else, its claims will remain unilateral and will not be recognized by other countries.

III. Analysis A. Dispute Resolution The EEZs, as well as other maritime zones, overlap, bringing the dilemma of who shall have the right to the overlapping territories. Although EEZs are for the exclusive use and enjoyment of the

Filipino citizens4, it does not mean that such territories are no longer subject to anything else, as the EEZs are still subject to various Rights of Passage, as the Philippines do not have sovereignty over it. A similar issue, that was already resolved, was about the Batanes islands, because the said islands are not included in the Treaty of Paris territories.5 This was however corrected in the 1935 constitution, when Nicolas Buendia wrote a letter asking the convention to correct the error that excluded the Batanes islands from Philippine Territory. 6 This was not contested, however, but one can see how international law applies. The UNCLOS has its own dispute resolution provisions that place emphasis on conciliation, arbitration, or judicial procedures. While the delimited maritime boundaries may seem detrimental to the Philippines, it is still surrounded by overlapping claims on respective maritime areas. Friendly negotiations is strongly suggested, under Art. 47 and 83 of the UNCLOS, to avoid unnecessary litigation, with regard to these issues.7 Under the UNCLOS, as long as neither party resorts to force, they are allowed to utilize whatever method they deem necessary to resolve the conflict. Again, the international court would be considered as a last resort, after attempting adjudication and negotiations, as it would unnecessarily increase hostilities between the parties involved. One can easily see the parallels between international law and private practice of law. B. Gaining Territory Sovereign States require the following: territorial integrity, border inviolability, supremacy of the state, and the state being the supreme independent lawmaking authority 8 in addition to the building blocks of a state. The state needs coercive force, through its military, in order to secure these components. This is still applicable, even if the original intent of the treaty is for nationstates, where there is no role for external agents in domestic structures. There are different methods to acquire sovereignty. They are: accretion, cession, conquest, effective occupation, and prescription. 9 These means all involve physical possession of the territory in question. Accretion is by physical expansion, through the creation of new land by natural geographical processes. This involves creation of new islands through volcanic eruptions or earthquakes or
4

Peter B. Payoyo, Philippine Marine Resources Policy in the Exclusive Economic Zone 31 (Institute of International Legal Studies, 1991). 5 T.O.P. supra 6 Rodolfo Severino, supra 18-19. 7 Jorge R. Coquia, Philippine Baselines and Future Negotiations with Neighboring States on Boundary Delimitations 40, in Roundtable Discussion on Baselines of Philippine Maritime Territory and Jurisdiction, (Institute of International Legal Studies, 1995). 8 Treaty of Westphalia, October 24, 1648, Holy Roman Emperor and the King of France and their respective allies, http://avalon.law.yale.edu/17th_century/westphal.asp accessed Oct. 5, 2012. 9 Eyal Benveniste, International Law of Occupation, (Princeton University Press; Paperback Ed edition, Sept. 7, 2004)

other similar means. Conquest refers to the use of force and arms to take control of territory. This includes the use of force and that resistance is encountered by the invaders. Cession, is the transfer of sovereignty to another governing entity, such as when the United States granted the independence of the residents of the Philippines, or the sale of the Philippine Islands to the US through treaty.10 Effective occupation is when the state has effective control over an area. It is defined as uncontested administration of land and its resident population. It may have been abandoned by the previous governing entity for any reason.11 It is described as one of the strongest claims to territory, as opposed to just having rights to said territory. Prescription is the actual exercise of sovereignty over a reasonable period of time without objection from other states, as described using the analogy between private practice and international law. This method, along with the four others, have their roots in Roman Law, and that the different modes of acquisition cannot be separated from each other; most titles are composite.12 It must be reiterated that the UNCLOS does not define political territory, instead, it provides the framework for managing the oceans, with focus on transportation, communication, exploitation of resources, and security of each nation. C. Foreign Policy Foreign policy of other nations will always be in favor of that nation. Take the US for example, during their occupation of the Philippine Islands, they enforced policy that would benefit them before the Filipinos.13 They cannot be expected to fight the battles of the Filipinos for them, even if they are allies, especially with regards to territorial dispute, as the Philippines is not being attacked and that there is no declaration of war. The same can be said of the Filipinos, however, as seen in their attempts to swing the UNCLOS in their favor.14 That being said, the Philippines do not have sufficient military strength, or it is not exercised, to continuously defend its claim as well as protecting its other interests since the country ceded from the US. The existing military infrastructure may not be sufficient to serve as an effective coercive force that can defend the nations territorial claims. D. Conflicting Territories

10 11

T.O.P, supra Taylor Sumner, International Court of Justice, 53 Duke Law Journal 1787 (2004). 12 Randall Lesaffer, Argument from Roman Law in Current International Law: Occupation And Acquisitive Prescription, 16 European Journal of International Law 38, n.1 (2005). 13 Owen Lynch, Invisible Peoples and a Hidden Agenda: The Origins of Contemporary Philippine Law Laws, 63 Philippine Law Journal 112 (1988). 14 Statement of the Head of the Philippine Delegation, Jamaica (December 10, 1982), in PNT, Doc. No. 44A, 505508.

Territories within the South China Sea and the West Philippine sea are being contested due to the presence of natural resources that were discovered fairly recently there. Prior to such discovery, those areas were not really given much attention. It was only Among the contested territories is the Scarborough Shoal, as well as Mischief reef, where China utilized effective occupation, to strengthen its claims in the international court. They can argue that while the Philippines could have had the rights to those locations, they did nothing to assert their claim. This is a strong tactic as evidenced in the Island of Palmas, where occupation of territory that is effectively abandoned is considered to be a legitimate means of acquiring territory. Effective occupation is sufficient to override competing claim of ownership based on discovery, and the Netherlands had demonstrated continued and effective control, so the US ceded control of the contested territory.15 As pointed out earlier, the issue stems from the different interpretations of the maritime zones identified in the UNCLOS. While the Philippines has a strong claim, as it is the closest country to the contested area, should China be able to create a permanent outpost there, and the Philippines do nothing about it, China would have leverage as it would then have physical possession of the territory as it may be construed as abandonment of the shoal. The current dispute resolution method relies on the conflicting countries to come into agreements of their own, granting the right to choose any mode of dispute settlement other than use of force.16

IV. Conclusion/Recommendation The UNCLOS provides a good framework with which to resolve issues and disputes outlined in this paper. It does not, however, provide for all possible situations. It does not designate the weight given to physical possession with regards to claims of sovereignty. As discussed previously, physical occupation has been used as a basis for claiming sovereignty, but only on specific circumstances. It did not provide for instances where there are more than one claims, and physical possession is one of the bases used for the claims.

15

Trevor A. Dennis, The Principality of Sealand: Nation Building by Individuals, 10 Tulsa J. Comp. Intl. L. 261, (2002). 16 Natalie Klein Dispute, Settlement in the UN Convention on the Law of the Sea 31-32 (Cambridge University Press, 2005).

A possible tactic a claimant might use in order to gain control over a territory, is to have rogue elements of their country claim it, so that they can claim that they have no involvement in the usurpation, while at the same time, they would have access to that territory. Should any one protest, they can just claim that the ones occupying are not part of their country, absolving them of most of the responsibility. This is unethical and may not always be effective, but it remains a possibility. It would not be an act of war if it is not at nation that displays aggression. This author recommends further studies be undertaken to consider situations where a claimant resorts to physical occupation or other similar means identified to claim sovereignty. While it is good to have allies, one must not forget that they will have their own agendas. In order to be able to truly enforce ones claims in the international , one must be able to enforce them as necessary. After all, territory that a country neither occupied, controlled, nor protected cannot be considered part of that countrys territory. The Philippines is already bound to implement the UNCLOS provisions, as per its declaration to the international community. The convention both diminishes and increases the influence of the Philippines on its surrounding territories, as it grants the Philippines access to resources around it, but it has to share. It is also pointless to insist on defining ones own territories, when everyone else disagrees. This would make them virtually unenforceable, unless the Philippines provides for the enforcement. Being able to say that a specific area is part of a countrys territory, it is another to prove it. The rest of the nations of the world would ignore a nation claiming that a piece of land that someone else has settled on is actually their territory, unless they are to gain something in enforcing such claim.