PUBLIC INTERNATIONAL LAW

(2010 EDITION)

International law is that branch of public law which regulates the

relations of States and of other entities which have been granted
international personality (e.g. the UN). Modern international law after
World War II, however, now deals not only with the relations between
states, but also their relations with persons, natural or juridical (e.g.
int’l human rights law).

Distinction between a subject and object of international law

A SUBJECT is an entity that has rights and responsibilities under

international law; it can be a proper party in transactions involving the
application of international law among members of the international
community. Subjects include: states, colonies, the Holy See, the United
Nations.

An OBJECT is a person or thing in respect of which rights are held and

obligations assumed by the subject; it is not directly governed by the
rules of international law; its rights are received, and its
responsibilities imposed, indirectly through the instrumentality of an
international agency. Traditionally, individuals have been considered
merely as objects, not subjects, of international law; however, modern IL
now grants, primarily through treaties, a certain degree of international
personality to individuals (e.g. individuals are granted by treaty the
power to sue before the European Court of Human Rights).
Divisions of International Law

1) LAWS OF PEACE- Governs the normal relations of States

2) LAWS OF WAR - Rules during periods of hostility

3) LAWS OF NEUTRALITY- rules governing States not involved in the

hostilities

DOMESTIC v INTERNATIONAL LAW

1) DUALISM – domestic and international law are independent of each

other, as they regulate different subject matter. IL regulates the
relations of sovereign states, while municipal law regulates the internal
affairs of a state. Thus, no conflict can ever arise between
international and municipal law, because the two systems are mutually
exclusive. If IL is applied within a state, it is only because it has
been expressly incorporated by municipal law. The Philippines is a
dualist state.

2) MONISM – Monists have a unitary concept of law and see all law –
including both international and municipal law – as an integral part of
the same system. If conflict exists between international law and
municipal law, international law must prevail. Germany is a monist
state.
IN RELATION TO PHILIPPINE (MUNICIPAL) LAW

2 VIEWS:(incorporation v. transformation)

1) DOCTINE OF INCORPORATION

rules of international law form part of the law of the land and no
further legislative action is needed to make such rules applicable in the
domestic sphere.

a) Such is recognized in art. 2, sec. 2, as the Philippines "adopts the

generally accepted principles of international law as part of the law of
the land."

b) Rules of international law are given equal standing with, but are not
superior to, national legislative enactments. Thus, the Constitution, as
the highest law of the land, may invalidate a treaty in conflict with it.

[Secretary of Justice v. Hon. Lantion and Mark Jimenez, Jan. 18, 2000]

2) DOCTRINE OF TRANSFORMATION

the generally accepted rules of int'l law are not per se binding upon the
State but must first be embodied in legislation enacted by the lawmaking
body and so transformed into municipal law. Only when so transformed
will they become binding upon the State as part of its municipal law.
BAR MATTER July 16,2008 (Bday ni 4blue95) International Law and municipal
law are supreme in their own respective fields. Neither has hegemony over
the other. (Brownile, Principles of Public International Law, 4thj ed. P.
157.) Under Article II, Section 2 of the 1987 Constitution, the generally
accepted principles of international law form part of the law of the
land. Since they merely have the force of law, if it is Philippine courts
that will decide the case, they will uphold the Constitution over
international law. If it is an international tribunal that will decide
the case, it will uphold international law over municipal law. As held y
the Permanent International Court of Justice in the case of the Polish
Nationalist in Danzig, a State cannot invoke its own Constitution to
evade obligations incumbent upon it under international law.

2007 BAR: the surviving Filipina “comfort women” demand that the Japanes
government apologize and pay them compensation. However, under the 1951
San Francisco Peace Agreement—the legal instrument that ended the state
of war between Japan and Allied forces – all the injured states,
including the Philippines ,received war reparations and in return, waived
all claims against Japan arising from the war. Is that a valid defense?

HELD: NO. Under the Preamble of the San Francisco Treaty, Japan
undertooks to conform to the protection and observance of human rights
and that Article 103 of the UN charter provides that the obligations of
the member-States prevail over any other international agreement.

The waiver under the San Francisco Treaty which stated that Japan had no
resources presently sufficient to make complete reparation for all such
damages and sufferings and meet its other obligations. Thus, the waiver
was operative only whle Japan had inadequate resources.

4blue 95: however, the Filipina “comfort women” cannot sue Japan for
damages because a Foreign State may not be sued before Philippine Courts
as a consequence of the principles of independence and equality of states
(Rep of Indonesia v Vinzon)
2008 notes: The focus of DOUBLE CRIMINALITY in extradition, is that,
the accused can be extradited even if he committed such crime is the past
since the requirement in double criminality is satisfied even if the act
was not criminal in the requested state at the time of occurrence if it
was criminal at the time that the request was made.

SOURCES OF INTERNATIONAL LAW

Article 38 of the Statute of the International Court of Justice (ICJ) is

considered the authoritative enumeration of the sources of International
Law.

A) PRIMARY (NORMS WHICH CREATE INT’L LAW)

1. TREATY / INTERNATIONAL CONVENTIONS - Generally, a treaty only binds

the parties. However, treaties may be considered a direct source of
Int'l law when concluded by a sizable no. of States, and is reflective of
the will of the family of nations (in which case, a treaty is evidence of
custom).
2. INTERNATIONAL CUSTOM - Practices which, through persistent usage, have
grown to be accepted by States as legally binding. 2 Elements:

1. STATE PRACTICE – a consistent and uniform external conduct of States.

Generally, both what states say and what they do are considered state
practice.

2. OPINIO JURIS - State practice must be accompanied with the conviction

that the State is legally obligated to do so by int'l law, and not
through mere courtesy or comity, or because of humanitarian
considerations.

3. GEN PRINCIPLES OF LAW- rules derived mainly from natural law, observed
and recognized by civilized nations (ex: res judicate, prescription and
pacta sunt servanda also ex aequo et bono—what is good and just)

Instant Custom:

Customary law may emerge even within a relatively short passage of time,
if within that period, State Practice has been uniform and extensive.
(ex. Law on the Continental Shelf) Thus, int'l law does NOT always
require a long period of time to elapse before conduct is considered
customary.

3. GENERAL PRINCIPLES OF LAW

Principles common to most national systems of law; rules based on natural
justice. ex. good faith, estoppel, exhaustion of local remedies.

B) SECONDARY (EVIDENCE OF INT’L LAW)

1. JUDICIAL DECISIONS --a subsidiary means for the determination of rules

of law (e.g., determining what rules of customary IL exist) that is
acceptable so long as they correctly interpret and apply int'l law.

Note: Even decisions of national courts, when applying int'l law, are
acceptable. ex. Principles on diplomatic immunity have been developed by
judgments of national courts.

2. WRITINGS OF PUBLICISTS -- The word 'Publicist' means 'learned writer.'

Learned writings, like judicial decisions, can be evidence of customary
law, and can also play a subsidiary role in developing new rules of law.
2

Requisites:

1. Fair and impartial representation of law.

2. By an acknowledged authority in the field.

4blue95: The primary sources may be considered as formal sources in that

they are the methods by which norms of international law are created and
recognized. A conventional or treaty norm comes into being by established
treaty-making procedures and a customary norm is the product of the
formation of general practice accepted as law.

June 12,2007 notes: By way of illustrating International Convention as a

source of law, we may refer to the principle embodied in Article 6 of the
Vienna Convention on the Law of Treaties which reads: “Every State
possesses capacity to conclude treaties”. It tells us what the law is and
the process or method by which it came into being. International Custom
may be concretely illustrated by pacta sunt servanda, a customary or
general norm which came about through extensive and consistent practice
by a great number of states recognizing it as obligatory.

4blue95:The subsidiary means serves as evidence of law. A decision of the

International Court of Justice, for example, may serve as material
evidence confirming or showing that the prohibition against the use of
force is a customary norm, as the decision of the Court has demonstrated
in the Nicaragua Case. The status of a principle as a norm of
international law may find evidence in the works of highly qualified
publicists in international law, such as McNair, Kelsen or Oppenheim.

BASIS OF INTERNATIONAL LAW:

1.Law of Nature School:

Natural and universal principle of right and wrong, independent of

mutual intercourse or compact, which can be discovered and recognized by
every individual through the use of his reason and conscience. Since
individuals compose the State whose will is but the collective will of
the inhabitants, the State also becomes bound by the law of nature.

2.Positivist School:

Binding force of international law is derived from the agreement of the

States to be bound by it. In this context, international law is not a law
of subordination but of coordination.
3.Eclectic or Groatian School:

Voluntary law may be said to blend with the natural law and be, indeed,
an expression of it in so far as it conforms to the dictates of right
reason. In case of conflict, the natural law prevails, being the more
fundamental law.

Nature of Binding Effect of International Law

1.Principle of Jus Cogens:

Customary international law which has the status of a peremptory

(absolute, uncompromising, certain, norm of international law. Such norm
is accepted and recognized by the international community of states as a
rule, from which no derogation is permitted and which can be modified
only by a subsequent norm having the same character.

2. Jus Dispositivism

Norms of international law which might be superceded or displaced or

states may set them aside.
4blue95: state sovereignty signifies independence in regard to a portion
of the globe ,and the right to exercise and enforce jurisdiction therein,
to the exclusion of any other state the function of the state.

Sovereignty means independence from outside control

June 12,2007 Bar Matter: AUTO-LIMITATION means that any state may by its
consent ,express or implied, submit to restrictions of its sovereign
rights

What is the basis of the Philippines claim to a part of the Spartly

Islands?

The basis of the Philippine claim is effective occupation of a territory

not subject to the sovereignty of another state. The Japanese forces
occupied the Spratly Island group during the Second World War. However,
under the San Francisco Peace Treaty of 1951 Japan formally renounced all
right and claim to the Spratlys. The San Francisco Treaty or any other
international agreement, however, did not designate any beneficiary state
following the Japanese renunciation of right. Subsequently, the Spratlys
became terra nullius and was occupied by the Philippines in the title of
sovereignty. Philippine sovereignty was displayed by open and public
occupation of a number of islands by stationing of military forces, by
organizing local government unit, and by awarding petroleum drilling
rights, among other political and administrative acts. In 1978, it
confirmed its sovereign title by the promulgation of Presidential Decree
No. 1596, which declared the Kalayaan Island Group part of Philippine
territory.

2008 BAR QUESTIONS

2008 BAR:The legal yardstick in determining whether usage has become

customary international law is expressed in the maxim opinio juris sive
necessitatis or opinio juris for short. What does the maxim mean? (3%)

The maxim “opinio juris sive necessitates” or simply “opinio juris” means
that States observe a practice or a norm out of a sense of legal
obligation or a belief in its juridical necessity. Opinio juris is the
subjective element of international customs, the objective element being
the long and consistent practice of States.

2008 BAR:Under international law, differentiate "hard law" from "soft

law". (3%)

“Hard law” refers to binding international legal norms or those which

have coercive character. “Soft law,” on the other hand, refers to norms
that are non-binding in character but still have legal relevance.
Examples of “hard law” are the provisions of the U.N. Charter, the Vienna
Convention on Diplomatic Relations, the Geneva Conventions of 1949 and
other treaties in force. Examples of “soft law” are resolutions of the
U.N. General Assembly and draft articles of the International Law
Commission. Soft law usually serves as precursor of hard law. The
Universal Declaration of Human Rights is one such example. It was a “soft
law” when it was adopted by resolution of the U.N. General Assembly in
1948, but it led to the development of “hard law” with the adoption of
two binding covenants on human rights, i.e., the International Covenant
on Civil and Political Rights and the International Covenant on Economic,
Social and Cultural Rights.

2008 BAR:May a treaty violate international law? If your answer is in the

affirmative, explain when such may happen. If your answer is in the
negative, explain why. (5%)

A treaty cannot violate an international law. A treaty presupposes a

contract conforming to all the attributes of an international agreement,
characterized by mutuality. A violation if any, will be on the
implementation aspect which is whether its subsequent enforcement is in
accord with the standards of international law.
2008 BAR:The President alone without the concurrence of the Senate
abrogated a treaty. Assume that the other country-party to the treaty is
agreeable to the abrogation provided it complies with the Philippine
Constitution. If a case involving the validity of the treaty abrogation
is brought to the Supreme Court, how should it be resolved? (6%)

The Supreme Court should declare the treaty abrogation valid.

The exercise of the treaty-ratifying power is not the exercise of

legislative power. It is merely the exercise of a check on the treaty-
making power of the President. The fact that the Constitution does not
ordain the requirement of Senate’s approval with respect to abrogation of
a treaty indicates the primacy of the executive branch in foreign affairs
which needs the flexibility to end treaties without the approval of the
Senate. Since the Constitution does not specifically require a role for
the Senate or Congress in treaty termination, exclusive responsibility
belongs to the president.

Alternative Answer :

The Supreme Court should declare the treaty abrogation invalid.

While the Constitution is silent on whether a treaty abrogation shall

require the concurrence of the Senate to make it valid and effective, the
treaty-ratifying power of Senate carries with it the power to concur a
treaty abrogated by the President by way of necessary implication.

Under the doctrine of incorporation, a treaty duly ratified by the Senate

and recognized as such by the contracting State shall form an integral
part of the law of the land. The President alone cannot effect the repeal
of a law of the land formed by a joint action of the executive and
legislative branches, whether the law be a statute or a treaty. To
abrogate a treaty, the President’s action must be approved by the Senate.
TERRITORY

Fixed portion on the surface of the earth on which the State settles and
over which it has supreme authority. The components of the territory of
the State are terrestrial, fluvial/maritime and aerial domains.

1.LAND TERRITORY

4BLUE 95 notes: jurisdiction over land territory is exercised by the

State over everything found within its territorial domain save for the
exemptions from bases of jurisdiction (latter topic)

Modes of Acquisition:

a.Discovery and Occupation

territory not belonging to any state is placed under the sovereignty of

the claiming state.
“Discovery” alone merely creates an inchoate right, it must be followed
within a reasonable time by effective occupation and administration.

b.Prescription

Continouos and uninterrupted possession over a long period of time, just

like in civil law. In international law however, there is no rule of
thumb as to the length of time needed for acquisition of territory
through prescription.

2006 notes: In connection above, 4 Blue 95 suggest that you consider

Grotius Doctrine of Immemorial Prescription which speaks of uninterrupted
possession going beyond memory.

2006 notes: Prescription is also a derivative mode of acquisition by

which territory belonging to one state is transferred to the sovereignty
of another state by reason of the adverse and uninterrupted possession
thereof by the latter for a sufficiently long period of time.

c.Cession

It is a derivative mode of acquisition by which territory belonging to

one state is transferred to the sovereignty of another state in
accordance with an agreement between them.

d.Subjugation/ Conquest

It is a derivative mode of acquisition by which the territory of one

state is conquered in the course of war and thereafter annexed and placed
under sovereignty of the conquering state.
e. Accretion

Increase in land area of the state, either through natural means or

artificially through human labor.

2.AIR TERRITORY

1. International Convention on Civil Aviation : “the contracting parties

recognize that every State has complete and exclusive sovereignty over
the air space above its territory” but this shall not include outer
space, which is considered as res communes. Other states have no right of
innocent passage over air territory of another State.

a.5 Freedoms of Air Transportation for Scheduled International services:

-fly across the territory without landing

-land for non-traffic purposes

-to put down passenger, mail ,cargo of flag country

-land to take passenger,mail and cargo of flag territory

-put down passenger ,mail and cargo from these territories.

b.Pursuant to 1981 resolution of the International Civil Aviation

Organization, intrusions into air space by civilian aircraft may be
intercepted, but in no case shall the interception be attended with the
use of weapons.

2007 notes: Military aircraft may, however, be shot down.

2.Outer Space

States have the right, under customary international law, to launch

Satellites in orbit over the territorial air space of other states.

Outer space is free for exploration and use by all states, it cannot be
annexed by any state, and it may be used exclusively for peaceful
purposes (Outer Space Treaty of 1967). As such, nuclear weapons of mass
destruction cannot be placed in orbit.

4 Blue 95 notes: In 1972 Convention of International Liability for Damage

Caused by Space Objects: States which launch objects into space may be
held liable for the harmful contamination caused by such objects or for
the damage which may be caused by falling objects.

2006 notes: Theories where outer space begins:

1.lowest altitude for artificial earth satellites to orbit without being
destroyed by friction(90 kms above earth)

2.theoretical limits of air flights (84 kms)

3.the functional approach, that the rules shall not depend on the
boundaries set, but on the nature of the activity undertaken.

3.MARITIME TERRITORY

Jurisdiction is same as land territory. However , in case of foreign

merchant vessels docked in a local port or bay, the coastal State
exercises jurisdiction in civil maters ,but criminal jurisdiction is
determined by the ff:

English Rule: State have jurisdiction over all offenses committed on

board the vessel except those which do not compromise the peace of the
Port (applicable in the Philippines)

French Rule:Flag State shall have jurisdiction over all offenses

committed on board the vessel except those which compromise the peace of
the port.
I.INTERNAL WATERS

Bodies of water within the land mass, such as rivers, lakes, gulfs and
bays. The UN Convention on the Law of Sea defines internal waters as all
waters on the landward side of the baselines of the territorial sea.

a.Rivers

i.Thalweg Doctrine: For boundary rivers, in the absence of an agreement

between the riparian States, the boundary line is laid on the middle of
the main navigable channel.

ii.Middle of the Bridge Doctrine: Where there is a bridge over a boundary

river, the boundary line is the middle or center of the bridge.

II.ARCHIPELAGIC WATERS

Archipelagic Doctrine: waters around, between and connecting the islands

of the archipelago, regardless of their breadth or dimension, are to be
treated as internal waters.

Straight Baseline Method:

To determine the extent of the archipelagic waters, the archipelagic

state shall draw straight baselines connecting the outermost points of
the outermost islands and drying reefs provided that the ration of the
area of water to the area of land is between 1:1 and 9:1.
The length of such baseline shall not exceed 100 nautical miles, except
that up to 3% of the total number of baselines enclosing any archipelago
may exceed that length, up to a maximum of 125 miles. The baselines drawn
should not depart, to any appreciable extent from the general
configuration of the archipelago.

All the waters within the baselines shall then be considered as internal
waters. The breadth of the 12-mile territorial sea, the contiguous zone,
the exclusive economic zone and the continental shelf shall then be
measured from the archipelagic baselines.

2006 notes: vessels may be allowed innocent passage within the

archipelagic waters, but this right may be suspended, after publication,
in the interest of international security. The coastal State may also
designate archipelagic sea lanes for continuous ,unobstructed transit of
vessels.

III.TERRITORIAL SEA

Belt of the sea located between the coast and internal waters of the
coastal state on the one hand, and the high seas on the other, extending
up to 12 nautical miles from the low water mark or in the case of
archipelagic states, from the baselines.

GRULE: Ships (not aircraft) of all states enjoy the right of innocent
passage through the territorial sea (not through internal waters). It is
understood, however, that the passage must be continuous and
expenditious, except in cases of force majeure. Submarines and other
underwater craft are required to navigate on the surface and to show
their flag.

4BLUE 95 notes: Criminal jurisdiction over foreign merchant vessels shall

be determined by the application of either the English or French Rule.
Innocent passage and involuntary entrance are recognized exceptions,
provided that in case of involuntary entrance ,the distress on the vessel
must be real.

IV.CONTIGUOUS ZONE

Extends upto 12 nautical miles from the territorial sea. Although

technically ,not part of the territory of the State, the coastal State
may exercise limited jurisdiction over the contiguous zone ,to prevent
infringement of customs, fiscal, immigration or sanitary laws.

V.EXCLUSIVE ECONOMIC ZONE

Extends upto 200 nautical miles from the low-water mark or the baelines,
as the case may be. Technically ,the area beyond the territorial sea is
not part of the territory of the state, but the coastal State may
exercise sovereign rights over economic resources of the sea,seabed,
subsoil, although other states shall have freedom of navigation and over-
flight, to lay submarine cables and pipelines and other lawful means.

4BLUE 95 notes: states with overlapping exclusive economic zones are

enjoined to enter into the appropriate treaty for joint exploitation and
utilization of the resources in the area.
VI.CONTINENTAL SHELF

Comprises the sea bed and subsoil that extend beyond its territorial sea
to a distance of 200 miles from the baselines from which the territorial
sea is measured where the outer edge of the continental margin does not
extend up to that distance.

4BLUE 95 notes:coastal state also enjoys the right of exploitation of oil

deposits and other resources in the continental shelf. In case the
continental shelf extends to the shores of another state, or is shared
with another state, the boundary shall be determined in accordance with
equitable principles.

VII.HIGH SEAS

High seas are treated as res communes or res nullius, and thus ,are not
territory of any particular State. The traditional view is freedom of the
high seas (they are open and available without restriction to the use of
all States for the purpose of navigation, flight over them ,laying
submarine cables and pipes, fishing ,research, mining etc..

At present however, this rule is subject to regulation arising from

treaty stipulations (regulations to keep the sea from pollution or
prohibiting nuclear testing).

4BLUE 95 notes: Any dispute arising form the UN Convention on the Law of
the Sea shall be submitted for compulsory settlement to one of the
tribunals having jurisdiction:

-International Tribunal for the Law of the Sea

-International Court of Justice

-arbitral or special tribunals constituted under the UNCLOS

Jurisdiction may be exercised by the State on the high seas over the
following:

a.Its vessels:

flag state has jurisdiction over its public vessels wherever they are,
and over its merchant vessels on the high seas. However, because of the
“flags of convenience” controversy, the UN Convention on the Law of the
Sea concedes that a vessel shall have the nationality of the flag it
flies, provided there is a genuine link between the State (whose flag is
flown) and the vessel.

b.Pirates: they are enemies of all mankind, they may be captured on the
open seas by the vessels of any state to whose territory they may be
brought for trial and punishment.

c.In exercise of the right to visit and search: Under the laws of
neutrality, the public vessels or aircraft of a belligerent State may
visit and search any neutral merchant vessel on the open seas and capture
it if found to be engaged in activities favorable to the other
belligerent.

d.under Doctrine of Hot Pursuit: State’s vessels (warships, aircraft and

other ships cleared and identifiable as being in government service and
authorized to that effect) may pursue the offending vessel into the open
seas and capture it and bring it back to its territory.

To be lawful ,the pursuit must have begun before the offending vessel has
left the territorial waters or the contiguous zone of the coastal state
and it must be continuous and unabated.
Jurisdiction over other territories:

1.assertion of personal jurisdiction over its nationals abroad

2.by virtue of its relation with other states, as when it establishes a

protectorate/condominium or administers trust territory or occupies enemy
territory in the course of war.

3.consequence of waiver of jurisdiction by the local state over persons

and things within the latter’s territory (Foreign army stationed in the
local State)

4.Principle of Extra-Territoriality: exemption of persons and things from

the local jurisdiction on the basis of international custom.

Basis of Jurisdiction:

1.Territorial Principle: State may exercise jurisdiction within its

territory. Exceptionally, it may have jurisdiction over persons and acts
done outside its territory depending on the kind of jurisdiction it
invokes.

2.Nationality Principle: State has jurisdiction over its nationals

anywhere in the world, based on the theory that a national is entitled to
the protection of the State wherever he may be, and thus, is bound to it
by duty of obedience and allegiance, unless he is prepared to renounce
his nationality.

3.Protective Principle: State has jurisdiction over acts committed abroad

(by nationals or foreigners) which are prejudicial to its national
security or vital interests.

4.Principle of Universality: state has jurisdiction over offenses

considered as universal crimes regardless of where committed and who
committed them. Universal crimes are those which threaten the
international community as a whole and are considered criminal offenses
in all countries.

5.Principle of Passive Personality: State exercises jurisdiction over

crimes against its own nationals even if committed outside its territory.
This principle may be resorted to it even if others are not applicable.

Exemptions from Jurisdiction:

a.Doctrine of State Immunity

b.Act of State Doctrine: State should not inquire into the legal
validity of the public acts of another State done within the territory of
the latter.

c.Diplomatic immunity

d.Immunity of the United Nations ,its Organs, specialized agencies, other

international organization and its officers.
4BLUE 95 notes: In World Health v Aquino: the search warrant issued for
alleged violation of custom laws was ordered quashed, as the WHO official
was entitled to the privileges and immunities of diplomatic envoys.

4BLUE 95 notes: In SEAFDEC v NLRC: it was held that SEAFDEC, as an

international agency,enjoys immunity from the legal writs and processes
of the Philippines, since subjection to local jurisdiction would impair
the capacity of such body to discharge its responsibilities impartially
in behalf of its member States.

e.Foreign merchant vessels exercising the right of innocent passage or

arrival under stress.

f.Foreign armies passing through or stationed in the territory with the

permission of the State.

g.Warships and other public vessels of another State operated for non-
commercial purposes.

NEW ARCHIPELAGIC DOCTRINE?

INTERNATIONAL law and constitutional law experts are set to ask the
Supreme Court on Wednesday to nullify the three-week-old Archipelagic
Baselines Law, barely a month before the May 13 deadline for the
Philippine government to submit to the United Nations its claim over its
extended continental shelf under the UN Convention on the Law of the
Sea.Saying Repubic Act No. 9522 “dismembers a portion of the territory of
the Philippines, in violation of the Constitution,” University of the
Philippines law professors Merlin Magallona and Harry Roque, their
students in constitutional law and public international law, and
Anakbayan party-list Rep. Risa Hontiveros will also ask the High Tribunal
to stop the government from registering and depositing with the UN
Secretary General a copy of the law signed by President Arroyo on March
10,2009.

The petitioners said the government should be prevented from depositing

the law with the UN because, once deposited, “it becomes immediately
binding on the Philippines under international law, and its subsequent
constitutional invalidation by (the Supreme Court) cannot anymore undo
the irreparable harm.”

R.A. 9522 redrew the country’s baselines to comply with the UNCLOS
requirements for an “archipelagic state,” in the process excluding the
disputed Kalayaan Island Group (KIG) and Scarborough Shoal from the main
archipelago and classifying them instead of “regimes of islands.” The
limits of Philippine territory defined in the law will determine the
country’s extended continental shelf, which is believed to contain
substantial amounts of oil, natural gas, minerals and polymetals.

The 70-page petition to be filed in the Supreme Court named Executive

Secretary Eduardo Ermita, Foreign Affairs Secretary Alberto Romulo,
Budget Secretary Rolando Andaya, National Mapping and Resource
Information Authority Administrator Diony Ventura and Philippine
Permanent Representative to the UN, Ambassador Hilario Davide Jr., as
respondents. Davide is supposed to deposit R.A. 9522 and the country’s
claim over its extended continental shelf with the UN.

The Department of Foreign Affairs’ Center for Maritime and Ocean Affairs
(CMOA) has not responded to VERA Files’ request for a comment.

HISTORICAL, LEGAL, SCIENTIFIC BASES

Magallona, Roque, Hontiveros and their co-petitioners said the new law
deprives the country of what has been established in historical, legal
and scientific terms as part and parcel of its national territory.

The petitioners cited, among others, the controversial 1898 Treaty of

Paris which, they said, delineated “a well-defined area of national
territory” of the Philippines when it was ceded by Spain to the United
States.

They added that the 1900 Treaty of Washington between Spain and the
United States included Cagayan, Sulu and Sibutu in Philippine territory,
while the 1930 convention between Great Britain and the United States
defined the boundary between the Philippines and Northern Borneo.

A mere statutory act—R.A. 9522 in this case—cannot remake a

constitutional definition of the national territory, provided in the
1935, 1973 and 1987 Constitutions, according to the petitioners.

Roque also said the scope and breadth of the country’s territory predated
the UNCLOS. “How dare Mrs. Arroyo give away this territory to the
detriment of the Filipino people,” he said.
The petitioners argued that the UNCLOS does not compel the Philippines to
categorize itself as an archipelagic state or to draw the baselines for
such a state on or before May 13 this year. The May 13 deadline pertains
only to the submission of the extended continental shelf which, they
said, can be drawn from the established baselines.

An archipelagic state under the UNCLOS makes use of the straight

baselines method to delineate the national territory. This entails
drawing straight lines connecting the outermost points of the outermost
islands following the general contour of the archipelago.

The petitioners said, however, R.A. 9522 “radically revised” the

definition of the Philippine archipelago under the Treaty of Paris. “The
result is a roughly triangular delineation which excludes large areas of
waters within the 600 miles by 1,200 miles rectangle enclosing the
‘Philippine archipelago’ as defined in the Treaty of Paris,” they said.

“Hence, R.A. 9522 constitutes a drastic reduction of Philippine territory

and a treasonous surrender of Philippine sovereignty, which is
incomprehensible given that the Treaty of Paris has been consistently
incorporated in all of our organic charters from the 1935 Constitution up
to the present 1987 Constitution,” the petitioners said.

CLAIM OVER KALAYAAN, SABAH WEAKENED

Magallona, an expert on the UNCLOS who has argued before the

International Court of Justice twice, was quoted in the petition as
saying that by declaring the KIG and Scarborough Shoal as regimes of
islands, the country has lost 15,000 square nautical miles of territorial
waters. Under UNCLOS, a regime of islands consists of islands or
naturally formed areas of land surrounded by water that remain above
water during high tide.

“By surrendering the above-mentioned territorial waters through the

passage of R.A. 9522 excluding the KIG and Scarborough Shoal from the
baseline, the State has reneged on its constitutional duty to protect our
exclusive marine wealth and the offshore fishing grounds of our
subsistence fishermen,” the petitioners said.

R.A. 9522 weakened the country’s claim not only over KIG but also over
Sabah, they added.
The KIG is part of the disputed Spratlys chain of islands in the South
China Sea being claimed in part by the Philippines, Malaysia, Taiwan and
Brunei and in whole by Vietnam and China. The Philippines officially
staked its claim over the KIG in 1978 through President Decree 1596,
which declared it a distinct and separate town of Palawan.

The passage of R.A. 9522 has been the subject of diplomatic protests from
China and also prompted the Chinese to send patrols to the disputed area
last month.

The Philippines and Malaysia, meanwhile, have conflicting claims over

Sabah in northern Borneo. The Sultan of Brunei ceded Sabah to the
Sultanate of Sulu, which in turn leased it to the British North Borneo
Company in 1878. The Malaysian claim is based on a perpetual lease. The
Philippines formally asserted that Sabah was part of its territory in
1962 based on the claims of the heirs of the Sultanate of Sulu, who had
ceded proprietary rights over Sabah to the Philippines. The Sabah issue
has been shelved for the sake of peaceful co-existence between the two
countries.

INTERNAL WATERS

The petitioners said R.A. 9522 was also unconstitutional because it

converted the country’s internal waters into archipelagic waters. This
means that the waters inside the baselines between islands are no longer
internal waters over which the Philippines has full and exclusive
sovereignty.

In effect, the law gave foreign vessels the right to innocent passage
over the Philippine internal waters and, worse, the right of the aircraft
of other states to make overflights in Philippine airspace in violation
of the Constitution, according to the petitioners.

“Since the Philippines will have to allow foreign ships of all kinds to
navigate in Philippine waters—including nuclear-powered submarines,
nuclear-powered warships and other ships carrying weapons-grade nuclear
substances, this clearly violates our Constitution’s nuclear-weapons free
policy,” they said.
The petitioners also recalled that when the Philippines signed the UNCLOS
on Dec. 10, 1982, it explicitly expressed that “the convention shall not
be construed as amending in any manner any pertinent laws and
presidential decrees or proclamations of the Republic of the
Philippines.” The government declared at the time that it was maintaining
and reserving its “right and authority” to amend these according to the
Philippine Constitution.

“R.A. 9522 forever closes the door to any Philippine efforts to obtain
the acceptance by the international community of our constitutionally-
defined national territory,” the petition said. “R.A. 9522 abandons, or
at the very least, severely weakens, any and all claims we have or may
have over territories as defined by our Constitution.”

Magallona, Roque, Hontiveros and their co-petitioners described their

petition against the baselines law as among the most important cases to
be decided by the Supreme Court.

“What is at stake is national territory and resources which is the only

hope for the Filipinos to recover from the quagmire brought about by
corruption and misfeasance of government. It goes into the very identity
of the Filipino people insofar as territory is an element of statehood,”
Roque said.

PUBLIC INTERNATIONAL LAW