1. Discovery and contiguity are sufficient bases for the acquisition of sovereignty.

- On the point of discovery of why it cannot be alone a sufficient basis for the acquisition of
sovereignty, The Arbitration Court decided that:

Discovery does not create a definitive title of sovereignty, but only an “inchoate title”, which
exists without external manifestation. This inchoate title of discovery must be completed within a
reasonable period by the effective occupation of the region claimed to be discovered. There
must be a continuous and peaceful display of sovereignty.

Excerpt from the Us vs Palma Case:

“For these reasons, discovery alone, without any subsequent act, cannot at the present
time suffice to prove sovereignty over the Island of Palmas (or Miangas) ; and in so far as
there is no sovereignty, the question of an abandonment properly speaking of
sovereignty by one State in order that the sovereignty of another may take its place does
not arise.”

Moreover, The title of contiguity, understood as a basis of territorial sovereignty, has no

foundation in international law.

Excerpt from the Us vs. Palmas Case:

In the last place there remains to be considered title arising out of contiguity. Although
States have in certain circumstances maintained that islands relatively close to their shores
belonged to them in virtue of their geographical situation, it is impossible to show the
existence of a rule of positive international law to the effect that islands situated outside
territorial waters should belong to a State from the mere fact that its territory forms the
terra firma (nearest continent or island of considerable size). Not only would it seem that
there are no precedents sufficiently frequent and sufficiently precise in their bearing to establish
such a rule of international law. but the alleged principle itself is by its very nature so
uncertain and contested that even Governments of the same State have on different
occasions maintained contradictory opinions as to its soundness. The principle of
contiguity, in regard to islands, may not be out of place when it is a question of allotting them to
one State rather than another, either by agreement between the Parties, or by a decision not
necessarily based on law; but as a rule establishing ipso jure the presumption of sovereignty in
favour of a particular State, this principle would be in conflict with what has been said as to
territorial sovereignty and as to the necessary relation between the right to exclude other States
from a region and the duty to display therein. Nor is this principle of contiguity admissible as a
legal method of deciding questions of territorial sovereignty; for it is wholly lacking in precision
and would in its application lead to arbitrary results. This would be especially true in a case such
as that of the island in question, which is not relatively close to one single continent, but forms
part of a large archipelago in which strict délimitai ions between the different parts are not
naturally obvious.
2. RA 9522 is a statutory tool that delineates Philippine territory.

No. RA 9522 is a statutory tool to demarcate the country’s maritime zones and continental
shelf under UNCLOS III. It is not to delineate Philippine territory. Furthermore, UNCLOS III has
nothing to do with the acquisition or loss of territory. Rather, it is a multilateral treaty regulating
sea-use rights over maritime zones. (Magallona vs Ermita)

3. The non-enactment of an UNCLOS-compliant baselines law has absolutely no

consequence for the Philippines.

Absent an UNCLOS III compliant baselines law, an archipelagic State like the
Philippines will find itself devoid of internationally acceptable baselines from where the breadth
of its maritime zones and continental shelf is measured. This is recipe for a two-fronted
disaster: first, it sends an open invitation to the seafaring powers to freely enter and exploit the
resources in the waters and submarine areas around our archipelago; and second, it weakens
the country’s case in any international dispute over Philippine maritime space. These are
consequences Congress wisely avoided.

The enactment of UNCLOS III compliant baselines law for the Philippine archipelago
and adjacent areas, as embodied in RA 9522, allows an internationally-recognized delimitation
of the breadth of the Philippines’ maritime zones and continental shelf. RA 9522 is therefore a
most vital step on the part of the Philippines in safeguarding its maritime zones, consistent with
the Constitution and our national interest.

(source: Magallona vs. Ermita)

4. The breadth of the territorial sea is always 12 nautical miles from the baselines.

No. Art. 3 Part II of UNCLOS provides that “Every State has the right to establish the
breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from
baselines determined in accordance with this Convention.”
5. The natural coastline or where the waves meet the shore is the same as the baseline.

Because the normal baseline for measuring the breadth of the territorial sea is the low-
water line along the coast as marked on large-scale charts officially recognized by the coastal
State.

6. A duly-promulgated law declaring a coastal state’s baselines is sufficient to establish

such baselines.

False. The coastal state’ declaration of baselines must be in accordance with

international law and/or provisions of UNCLOS.

7. A baseline cannot be drawn from a low-tide elevation which has a lighthouse built on
it.

False. Article 7 of UNCLOS states that straight baselines cannot be drawn to or from
low-tide elevations, unless lighthouses or similar installations which are permanently above sea
level have been built on them or except in instances where the drawing of baselines to and from
such elevations has received general international recognition.

8. A low-tide elevation always generates a territorial sea.

A low-tide elevation (LTE) does not always generate a territorial sea. While an LTE
within the territorial sea may itself generate a territorial sea baseline, an LTE beyond the
territorial sea has no territorial sea of its own. The International Court of Justice has also
cautioned against the use of the so-called “leap-frogging” method which seeks to generate a
territorial sea from a LTE outside the territorial sea but situated less than 12 nm from another
LTE within the territorial sea. (The International Law of the Sea, pp. 109 to 110)
9. Japan asserts that Okinotorishima is an island that is entitled to a 200 nautical mile
EEZ. Okinotorishima is an atoll with two islets, or rocks above water at high tide. The
waters around the reefs are potentially rich in oil and other mineral and fisheries
resources and it lies in an area of potential military significance. The rocks have concrete
encasings. The rocks appear barren, and without terrestrial vegetation. There is a stilt
platform within the Okinotorishima lagoon which houses a research station
10. The arbitral tribunal made a definitive ruling on which country has sovereignty over
the land features in Scarborough Shoal and in the Kalayaan Island Group.

False, because the basis for the arbitration was the 1982 UNCLOS and it does not
address the sovereignty of states over land territory. Moreover, the tribunal has not been asked
to, and does not purport to, rule as to which State enjoys sovereignty over any land territory in
the South China Sea, in particular with respect to the disputes concerning sovereignty over the
Spratly Islands or Scarborough Shoal.

(source: PH vs CN Arbitration Award, par. 5)

11. Waters on the landward side of the baseline are always called internal waters.

No. Article 8 par. 1 of UNCLOS, provides that except as provided in Part IV, waters on the
landward side of the baseline of the territorial sea form part of the internal waters of the State.
Under UNCLOS Part IV, it provides for the archipelagic waters. Hence, waters on the landward
side of the baseline may also be called archipelagic waters. (UNCLOS)

12. There is always a right of innocent passage through internal waters.

False. Under Article 17 of UNCLOS, right of innocent passage may only be enjoyed
through the territorial sea.

13. There is no difference between an archipelagic state and an archipelago.

There is a difference. According to Article 46:

For the purposes of this Convention: (a) "archipelagic State" means a State constituted
wholly by one or more archipelagos and may include other islands; (b) "archipelago" means a
group of islands, including parts of islands, interconnecting waters and other natural features
which are so closely interrelated that such islands, waters and other natural features form an
intrinsic geographical, economic and political entity, or which historically have been regarded as
such.
14. The sovereignty exercised by an archipelagic state over its archipelagic waters, as
well as the superjacent airspace, the subjacent seabed and subsoil, and all the resources
contained therein, is absolute and limitless.

FALSE, the exercise of sovereignty in these areas are not absolute and limitless. The
UNCLOS provided for limitations which are the recognition of existing fishing rights of
immediately neighboring States and recognition of existing submarine cables by other States
passing through its waters.

Sources: Article 49 and 51 of UNCLOS

15. Archipelagic sea lane passage has no similarities with transit passage.

No. All ships and aircrafts enjoy the right of transit passage as well as the right of
archipelagic sea lane passage. (Art. 38 and Art. 53, Part III of UNCLOS)

16. The Philippines may draw straight archipelagic baselines around the Kalayaan Island
Group.

Excerpt from Magallona vs. Ermita:

Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the
Philippine archipelago, adverse legal effects would have ensued. “The Philippines would have
committed a breach of two provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III requires
that "[t]he drawing of such baselines shall not depart to any appreciable extent from the general
configuration of the archipelago." Second, Article 47 (2) of UNCLOS III requires that "the length
of the baselines shall not exceed 100 nautical miles," save for three per cent (3%) of the total
number of baselines which can reach up to 125 nautical miles.”

17. Norway and Australia are examples of UNCLOS-compliant archipelagos.

Norway and Australia are not UNCLOS-compliant.

18. The only criteria for drawing archipelagic baseline is that the baseline must not
depart from the general configuration of the archipelago.

False. The core elements of the archipelagic baseline provisions in Article 47 of

UNCLOS must satisfy five (5) criteria. The Baselines are to:

1. connect the outermost points of the outermost islands ad drying reefs of the
archipelago and include the main islands;

2. result in a ratio of the land area of water to land of between 1 to 1 and 9 to 1;

3. with one exception be no longer 100 nm in length;

4. with only 3 per cent of the total number of baselines being 101 to 125 nm in length;
and

5. not depart to any appreciable extent from the general configuration of the
archipelago.

Source: The International Law of the Sea, 2nd Edtion by D. Rothwell and T. Stephens (2016):
Chapter 8, Archipelagic States, pg. 314.

19. Under the archipelagic doctrine, the waters around, between, and connecting the
islands of the archipelago form part of the territorial sea of the archipelagic state.

Under Art. 1 of the Philippine Constitution, the Archipelagic Doctrine provides that:
“xxx The waters around, between, and connecting the islands of the archipelago form
part of the internal waters xxx “
20. The breadth of the territorial sea, the contiguous zone, the exclusive economic zone,
and the continental shelf of an archipelagic state shall be measured from the closing
lines used to delimit internal waters.

FALSE, the breadth of the territorial sea, the contiguous zone, the exclusive economic
zone and the continental shelf of an archipelagic state shall be the outermost points of the
outermost islands and drying reefs of the archipelago.

Sources: Article 47 of UNCLOS and page 23 of SCS-WPS Dispute Non-Interactive.pdf

21. Ships and aircraft of all States enjoy the right of innocent passage through
archipelagic waters.

NOT ALL ships and aircraft of all States enjoy the right of innocent passage through
archipelagic waters.. The rights of passage have undergone significant refinement. A number of
states seek to place significant constraints upon the ability of certain vessels to enjoy innocent
passage consistent with the LOSC. For an instance, Bangladesh, Egypt and Malaysia do not
permit nuclear-powered ships or those carrying nuclear or other inherently dangerous or
noxious substances from entering their territorial sea without prior authorization. China, Iran and
Oman likewise impose a prior notification requirement upon warships seeking to pass through
the territorial sea .Notwithstanding the navigational rights granted to foreign shipping within a
coastal state’s territorial sea, the coastal state nevertheless retains significant rights so as to
maintain its sovereignty and national security.

22. The rights enjoyed by foreign ships in archipelagic sea lane passage is the same as
the right to innocent passage enjoyed by foreign ships in archipelagic waters.

Under innocent passage, ships of all States enjoy the right of innocent passage through
archipelagic waters, and also within the territorial sea of an archipelagic state. Therefore, foreign
ships which enter into the territorial sea of an archipelagic state would enjoy an ongoing right of
innocent passage as they passed from the territorial sea into archipelagic waters and then
passed through the archipelago back out into the territorial sea.

Under the archipelagic sea lane passage, all ships and aircrafts enjoy the right of
archipelagic sea lane passage in the sea lanes and air routes as designated by the archipelagic
state. This right is one that can be exercised for the purpose of ‘continuous, expeditious and
unobstructed transit’ between one part of the high seas or an EEZ and another part of the high
seas or an EEZ. It is designed to facilitate the passage of both ships and aircraft through and
over the waters of the archipelagic state so that they can freely move through the archipelago
as they continue their journey.

(source: UNCLOS, Articles 52 and 53)

23. The UNCLOS-prescribed rights for foreign vessels to overflight, fishing, scientific
research, laying of submarine cables, and mining is applicable in the internal waters.

No. The right of innocent passage for foreign vessels within the territorial sea of a
coastal State is defined as “navigation through the territorial sea for the purpose of (a) traversing
that sea without entering internal waters or calling at a roadstead or port facility outside internal
waters; or (b) proceeding to or from internal waters or a call at such roadstead or port facility.”
Also, Internal waters are all the waters that fall landward of the baseline. States have the same
sovereign jurisdiction over internal waters as they do over other territory. There is no right of
innocent passage through internal waters.

24. Ships of all states enjoy the right of innocent passage in the internal waters.

In inland waters, sovereignty of the state is equal to that which it exercises on the
mainland. The coastal state is free to make laws relating to its internal waters, regulate any use,
and use any resource. In the absence of agreements to the contrary, foreign vessels have no
right of passage within internal waters, and this lack of right to innocent passage is the key
difference between internal waters and territorial waters. The "archipelagic waters" within the
outermost islands of archipelagic states are treated as internal waters with the exception that
innocent passage must be allowed, although the archipelagic state may designate certain sea
lanes in these waters. (Art. 2 Part II, Art. 52 Part IV)

25. Collection of giant clams by a foreign vessel in a coastal state’s territorial sea is not a
prohibited act in the UNCLOS, and may thus be part of the right of innocent passage.

False because according to Article 17, passage of foreign ship shall be considered
prejudicial to the peace, good order or security of the coastal State if in the territorial sea it
engages in any fishing activities.
26. The breadth of the contiguous zone is always 12 nautical miles from the edge of the
territorial sea.

Article 33 of UNCLOS provides that:

1. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State
may exercise the control necessary to:

(a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations
within its territory or territorial sea;

(b) punish infringement of the above laws and regulations committed within its territory or
territorial sea.

2. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which
the breadth of the territorial sea is measured.

27. Indonesia is the world’s largest Muslim state. It asserts that, in retaliation for the
massacre that happened in the mosque in Christchurch, New Zealand, Indonesia can
validly ban ships bearing the Australian flag from innocent passage in its territorial
waters.

False.

Under Article 17 of the UNCLOS, ships of all States, whether coastal or land-locked,
enjoy the right of innocent passage through the territorial sea. Article 19 (1) of the Convention
provides that passage is innocent so long as it is not prejudicial to the peace, good order or
security of the coastal State. Article 19(2) provides the activities in which passage of a foreign
ship shall be considered to be prejudicial to the peace, good order or security of the coastal
State.

Indonesia failed to indicate any of the activities enumerated in Article 19(2) of the
Convention committed by the ships bearing Australian flags. Thus, Indonesia cannot validly ban
said innocent passage in its territorial waters.