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FERDINAND S GOLEZ
Vice Admiral AFP
I. Introduction
Seventy-one percent of the earth’s surface is covered by ocean waters. The
oceans have considerable effect in altering the world’s climate, weather
conditions, air quality, and provides extensive mineral and petroleum resources.
In addition, the fisheries and maritime produce are the source of 20% of the
proteins consumed by humankind. However, with the continued exploitation,
depletion, and deterioration of the ocean’s resources by man coupled with the
strong maritime states’ domination at the expense of other countries’ interests,
fueled the need among many governments to develop a comprehensive law of
the sea to allow an equitable sharing of resources and avoid conflict and
instability.
The First and Second UN Conferences on the Law of the Sea aimed to develop
agreements that would govern uses of the oceans, establish seaward limits on
the breadth of the territorial sea, and settle on the jurisdiction of coastal states
over resources beyond the territorial sea. The first conference, held in 1958,
produced four treaties: on the Territorial Sea and the Contiguous Zone, on the
Continental Shelf, on the High Seas, and on Fishing and the Conservation of
Living Resources on the High Seas. That conference, however, could not reach
agreement on the maximum breadth of the territorial sea or the seaward extent
of national jurisdiction over the continental shelf. The second conference, held in
1960, aimed to standardize the breadth of the territorial sea, but also failed to
reach agreement, mainly because the United States and other maritime
countries refused to accept a territorial sea broader than 6 miles.
Arising from the unresolved issues of the first two conferences, the need to
elaborate a new regime for the oceans compelled the United Nations General
Assembly to consider Ambassador Arvin Pardo of Malta’s call for an “an effective
international regime over the seabed and the ocean floor beyond a clearly
defined national jurisdiction," drawing attention to the potential riches of the
ocean floor which could cause conflicting legal claims and instability among
nations.
The Third UN Conference on the Law of the Sea (UNCLOS III) convened in
1973 with 160 countries participating in nine years of negotiations with the goal
of creating a comprehensive framework for the regulation of all activities on,
under, and over the ocean. Important features of the Convention include
navigational rights, territorial sea limits, economic jurisdiction, legal status of
resources on the seabed beyond the limits of national jurisdiction, passage of
ships through narrow straits, conservation and management of living marine
resources, protection of the marine environment, a marine research regime and,
a binding procedure for the settlement of disputes between States. In 1982, the
UN Convention on the Law of the Sea was adopted, despite strong objections to
many of the provisions of Part XI, on seabed mining from the industrialized
states. On 16 November 1994, the UN Convention on the Law of the Sea entered
into force, and presently, around 138 countries including the European Union
have become parties to the agreement.
The law of the sea is 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.
2. What is a Treaty?
Treaties are binding only upon the states parties to them, their relations with
non-party states continue to be regulated by customary law; however, the
provisions of treaties may become binding upon other states if they pass into the
next source of the law of the sea, which is customary international law.
Whenever there is a conflict between the Convention or Treaty and the Local
Law. Decisions of the courts vary depending on where the case would be filed.
Courts of most states seek to avoid conflicts by interpreting local law so as not to
contradict international law on the basis that the state is not to be presumed to
intend to fail in the discharge of its international obligations. In other words, local
law must prevail. Conversely, if the case is brought before an international
tribunal, it will uphold international law.
The British practice is that when municipal legislation is not compatible with a
treaty, the municipal law will continue to be applied. On the other hand, when
the treaty and statute are on equality, a new treaty prevails over an earlier
statute but it is also the case that a new statute prevails over a treaty. This is
the position of the United States, which has also been traditional in Western
Europe. In the case of the Philippines, under the Philippine Constitution, the
Supreme Court has the power to declare a treaty or executive agreement as
unconstitutional.
Customary international law is evident in the law of the sea. For instance,
the determination of national maritime boundaries was a product of norms
dictated by the world’s maritime powers and were mainly based on the
capability of these countries to protect the sea approaches.
There are seven types of waters with varying regimes recognized under the
Convention, namely: (1) Internal Waters; (2) Territorial Sea; (3) Archipelagic
Waters; (4) Contiguous Zone; (5) 200-mile Exclusive Economic Zone; (6) Straits
used for International Navigation; and (7) 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.
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.
The continental shelf comprises the sea bed and subsoil of the submarine
area that extend beyond the territorial sea throughout the natural prolongation
of its land territory to the outer edge of the continental margin or to a distance
of 200 nautical 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.
Coastal states have the right to exploit the mineral resources of their
continental shelf but must pay a small commission through the International
Sea-Bed Authority (ISBA) to other states from the proceeds of any exploitation of
resources beyond 200 miles from shore.
Coastal state jurisdiction over the continental shelf does not affect the legal
status of the waters above. Thus, beyond the territorial sea, 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 above a continental shelf as on the high seas.
Coastal states have the right to exploit the mineral resources of their
continental shelf but must pay a small commission through the
International Sea-Bed Authority (ISBA) to other states from the proceeds
of any exploitation of resources beyond 200 miles from shore.
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.
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.