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TERRITORY AND THE LAW OF THE SEA

Territorial Sovereignty - sovereignty in relation to a portion of the surface of


the globe
- Land or Water
- Without territory = NO STATE
- at the beginning there should be territory for a legal entity
to become a State
Acquisition of territory (old) - conquering
Acquisition of territory (intllaw)
Terra Nullius - no one's land that you claim as your own
- no concept of terra nullius = western concept
= lands had already been occupied by other people
= classify the people who were there first
- DISCOVER AND OCCUPY
CASE n1 - ISLAND OF PALMAS CASE
Netherlands v. USA
Spain as the first that DISCOVERED - planted their flag and claimed it f
or the king of Spain
- did not do EFFECTIVE OCCUPATION / APPARENT AUTHORITY = contino
us presence
- did not transfer ownership to the US
- the people did not recognize Spain as their discoverer; Dutch
speakers; entered agreements under the protectorate of the Netherlands
Island of Palmas awarded to the Netherlands
Prescription - not of terra nullius
- prescribed
Cession - peaceful transfer of territory from one sovereign to another
- often happens when a superpower falls and another power rises
Accretion - part of an original territory breaks away and attaches to anot
her territory
- when new land is formed that attaches to existing land
- riparian state = states near a body of river
= rivers bring sediments that can deposit lands and form new ter
ritory
Subjugation - conquest and use of force
- victor will own the land
- UTI POSSIDETIS "what you have is yours"
"what you possess"
= emerged after the independence of South America
= end of any war, whatever land you occupy is yours and claim it
as your territory
= undisturbed occupation of that territory
Intertemporal Law - law that existing at the time of the distribution of the ter
ritory is the law that applies
Critical Date - date of the issue of occupation of the territory
Effectivites - exercise of effective authority
- doctrine of acquiesence
Common heritage of mankind - RES COMMUNIS
polar region, outerspace, high seas, sea beds

LAW OF THE SEA (UNCLOS)


- country that considers it as custom: USA
ratified and signed: CHINA
= position against the superpowers
- territorial sea and reign of jurisdiction
BASELINES - seaward limit
- continental states as easier = normal baselines (ART 5)
= low-water mark or low tide
= GENERAL RULE
- states with loads of islands = straight baselines (ART 7)
= joining of several points around the country
- BAYS - body of water; tips of the mouth and connect
- ISLANDS = generate contiguous zone and EEZ; can have its own territori
al waters
*scarborough shoal - no EEZ and contiguous zone
- can you or not live there difference from an island
- archipelagic states = ART 46
= 12 nautical miles as part of the territory
MAGALLONA v ERMITA -
Philippine Baseline Law RA 9522
Does it reduce Philippine maritime territory under the Constitution?
TERRITORIAL SEA
- internal waters = 12 nautical miles inwards
= absolute jurisdiction and power over internal waters
right of innocent passage - right of foreign merchant ships to pass unhi
ndered through the territorial sea (ART 8,17)
- continuous and expeditious; stoppage is only incidental and as
needed (ART 18)
- freedom of navigation = transit passage
= under the territory of the coastal state; raise of flag to announce th
at you are only passing
SEA ZONES OF SOVEREIGN RIGHTS AND JURISDICTION
- Territory or not territory
- Continental Shelf (Benham Rise) ART 76
= EEZ for the Philippines - 200 nautical mile area from the baseline (AR
T 56 as rights of coastal State)
= Territory - within 12 nautical miles and recognized as such
= sovereign rights of exploring and exploiting, conserve and manage natu
ral resources living or non-living
= Sea bed as res communis unless assigned to a State
JURISDICTION - power over anything; legal power over anything
- legally bind and decide any matter given to it
- matters of jurisdiction usually comes first when it comes to deciding case
s = grave abuse of discretion resulting to
- no omnipotent tribunal
Article 287
Tribunal - interpretation of the convention
ICJ - jurisdiction of territorial disputes
- exhaustion of remedies
compromis - common facts and disputed issues between States submitted to the ICJ
China as a proponent of articles under the UNCLOS - position of power
9-dash line - inconsistent with the convention
EEZ - sovereign rights over the EEZ
Precautionary and preventive principles - for the environment0