#1 The US and Netherlands are both claiming sovereignty over the Islands of Palmas

Island of Palmas Case

2 UN Rep. of Int. Arb. Awards, 231

FACTS:
(called Miangas by Netherlands). Palmas/Miangas is an island located about halfway between
Cape San Augustin (Mindanao, Philippine Islands under US colonial regime) and the most
northerly island of the Nanusa group (Indonesia under the Netherlands East Indies) On January
23, 1925, both countries, through an exchange of letters, agreed to arbitration by Permanent
Court of Arbitration at The Hague. Pursuant to their agreement, since both countries could not
agree who to select as arbitrator, Max Huber, of Zurich (Switzerland), member of the Permanent
Court of Arbitration was to act as sole arbitrator. On January 21, 1906 General Leonard Wood,
who was then Governor of the Province of Moro, Philippine Islands, arrived in the island of
Palmas and discovered that the Netherlands was claiming sovereignty over it. Thereafter, the US
made a statement that it is part of the Philippine Islands based on the Treaty of Paris where
Spain ceded the Philippine Islands to the US. They allege that “the most reliable cartographers
and authors and even by treaty, particularly the Treaty of Münster of 1648, which was agreed to
by Spain and the Netherlands.” In the said treaty, between Spain and Netherlands, the latter
recognizes the territories conquered by the former. Thus, the US, as successor of Spain in the
Philippine Islands, by virtue thereof, they discovered the islands had sovereignty over it. In
addition, the US maintains that Palmas forms a geographical part of the Philippine islands and
by virtue of the principle of contiguity, it belongs to the Power having the sovereignty over the
Philippines. As a consequence, the US believes that since they are successors of Spain, who
had sovereignty over the island, they no longer have to prove that they exercise actual
sovereignty over it. The Netherlands argues that it has possessed and exercised rights of
sovereignty from 1677, or probably from a date prior even to 1648, to the present day. This
sovereignty arose out of conventions entered into with native princes of the Island of Sangi,
establishing the suzerainty of the Netherlands over the territories of these princes, including
Palmas (or Miangas).

ISSUE:
W.O.N the US has sovereignty over the islands of Las Palmas.

RULING:
No. Spain could not transfer more rights than she herself possessed. Thus, the US cannot claim
sovereignty. The Netherlands title of sovereignty, acquired by continuous and peaceful display of
state authority during a long period of time going probably back beyond the year 1700, therefore
holds good.

Discussion: Titles of acquisition of territorial sovereignty in present- day international law are
either based on: a) an act of effective apprehension, such as occupation or conquest, or, b)
cession which presuppose that the ceding and the cessionary Power or at least one of them,
have the faculty of effectively disposing of the ceded territory. c) natural accretion can only be
conceived of as an accretion to a portion of territory where there exists an actual sovereignty
capable of extending to a spot which falls within its sphere of activity. Territorial sovereignty, as
has already been said, involves the exclusive right to display the activities of a state. This right
has as corollary a duty: the obligation to protect within the territory the rights of other states, in
particular their right to integrity and inviolability in peace and in war, together with the rights
which each state may claim for its nationals in foreign territory. Without manifesting its territorial
sovereignty in a manner corresponding to circumstances, the state cannot fulfill this duty.
Practice, as well as doctrine, provides that “continuous and peaceful display of territorial
sovereignty” (peaceful in relation to other States) is as good as a title. Although continuous in
principle, sovereignty cannot be exercised in fact at every moment on every point of territory. The
intermittence and discontinuity compatible with the maintenance of the right necessarily differ
according as inhabited or uninhabited regions are involved, or regions enclosed within territories in
which sovereignty is incontestably displayed or again regions accessible from, for instance, the
high seas. In this case, the US cannot rely on Spain’s cession of the Philippine Islands
because Spain did not exercise sovereignty in Las Palmas. First, Spain was silent on the matter.
Second, Spain nor the US did not provide evidence of exercising actual sovereignty. If we
consider as positive law at the period in question the rule that discovery as such, i.e., the mere
fact of seeing land, without any act, even symbolical, of taking possession, involved ipso jure
territorial sovereignty and not merely an “Inchoate title,” a jus ad rem, to be completed
eventually by an actual and durable taking of possession within a reasonable time, the question
arises whether sovereignty yet existed at the critical date. If Spain had been exercising
sovereignty then there should be evidence of conflict between Spain and the Netherlands. In any
case, it is conclusive that, Spain may have had title to the island upon discovery, but it failed to
maintain it as it did not exercise its authority. Even admitting that the Spanish title still existed
as inchoate in 1898 and must be considered as included in the cession under Article III of the
Treaty of Paris, an inchoate title could not prevail over the continuous and peaceful display of
authority.
#2 Clipperton Island Case,
26 A.J.I.L. 1932

DOCTRINE: If a territory, by virtue of the fact that it was completely uninhabited, is, from the first moment
when the occupying state makes its appearance there, at the absolute and undisputed disposition of the
state, from that moment the taking of possession must be considered accomplished, and the occupation
is thereby completed.

FACTS:
On November 17, 1858, Lieutenant Kerwéguen, of the French Navy, while cruising about 1/2 mile off
Clipperton, drew up, proclaimed and declared that the sovereignty of Clipperton island beginning from
that date belonged to Emperor Napoleon III. Lieut. Kerwéguen officially notified the accomplishment of
his mission to the Consulate of France which made a like communication to the Government of Hawaii.
The same consulate published in English in the journal The Polynesian, the declaration by which French
sovereignty over Clipperton had already been proclaimed.

Thereafter, until the end of 1887 no positive and apparent act of sovereignty can be recalled either on the
part of France or on the part of any other Powers.

On Nov 24, 1897, France stated that 3 persons were found on the island collecting guano for the account
of the Oceanic Phosphate Co., of San Francisco, and that they had, on the appearance of the French
vessel, raised the American flag.

While the diplomatic action between the US and the French Navy was in progress, Mexico sent to the
place a gun-boat, La Democrata, considering that Clipperton was territory belonging to her for a long time.
France, having learned of the Mexican expedition, reminded that Power of its rights over Clipperton. The
2 governments referred to arbitration the solution.

ISSUE: Whether France proceeded to an effective occupation, satisfying the conditions required by
international law for the validity of this kind of territorial acquisition.

RULING:
Yes. It is beyond doubt that by immemorial usage having the force of law, besides the animus occupandi,
the actual, and not the nominal, taking of possession is a necessary condition of occupation. This taking
of possession consists in the act, or series of acts, by which the occupying state reduces to its possession
the territory in question and takes steps to exercise exclusive authority there.

If a territory, by virtue of the fact that it was completely uninhabited, is, from the first moment when the
occupying state makes its appearance there, at the absolute and undisputed disposition of the state, from
that moment the taking of possession must be considered accomplished, and the occupation is thereby
completed.

Clipperton Island was legitimately acquired by France on Nov 17, 1858. There is no reason to suppose
that France has subsequently lost her right by derelictio, since she never had the animus of abandoning
there in a positive manner does not imply the forfeiture of an acquisition already definitively perfected.

#3 Magallona v. Ermita
G.R No. 187167; August 16, 2011

FACTS:
In 1961, Congress passed Republic Act No. 3046 (RA 3046) 2 demarcating the maritime baselines of
the Philippines as an archipelagic State. 3 In March 2009, Congress amended RA 3046 by enacting
RA 9522, the statute now under scrutiny. The change was prompted by the need to make RA 3046
compliant with the terms of the United Nations Convention on the Law of the Sea (UNCLOS
III),5 which the Philippines ratified on 27 February 1984.

Complying with these requirements, RA 9522 shortened one baseline, optimized the location of
some basepoints around the Philippine archipelago and classified adjacent territories, namely, the
Kalayaan Island Group (KIG) and the Scarborough Shoal, as "regimes of islands" whose islands
generate their own applicable maritime zones.

Petitioners, professors of law, law students and a legislator, in their respective capacities as
"citizens, taxpayers or x x x legislators,", assail the constitutionality of RA 9522 on two principal
grounds, namely:

(1) RA 9522 reduces Philippine maritime territory, and logically, the reach of the Philippine
state’s sovereign power, in violation of Article 1 of the 1987 Constitution, 10 embodying the
terms of the Treaty of Paris11 and ancillary treaties,12 and

(2) RA 9522 opens the country’s waters landward of the baselines to maritime passage by all
vessels and aircrafts, undermining Philippine sovereignty and national security, contravening
the country’s nuclear-free policy, and damaging marine resources, in violation of relevant
constitutional provisions.13

In addition, petitioners contend that RA 9522’s treatment of the KIG as "regime of islands"
not only results in the loss of a large maritime area but also prejudices the livelihood of
subsistence fishermen.

ISSUES:

1. Does RA 9522 reduce Philippine maritime territory? NO

2. Does RA 9522 undermine Philippine sovereignty and national security? NO
3. Does RA 5446 surrender Philippine statutory claim over Sabah? NO
4. Does RA 9522 unconstitutionally "converts" internal waters into archipelagic waters hence
subjecting these waters to the right of innocent and sea lanes including overflight and
expose Philippine internal waters to nuclear and maritime pollution hazards? No

RULING:

1. No. UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral
treaty regulating, among others, sea-use rights over maritime zones (i.e., the territorial waters
[12 nautical miles from the baselines], contiguous zone [24 nautical miles from the baselines],
exclusive economic zone [200 nautical miles from the baselines]), and continental shelves that
UNCLOS III delimits.
On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties to
mark-out specific basepoints along their coasts from which baselines are drawn, either straight or
contoured, to serve as geographic starting points to measure the breadth of the maritime zones and
continental shelf.

Baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit with
precision the extent of their maritime zones and continental shelves. In turn, this gives notice to the
rest of the international community of the scope of the maritime space and submarine areas within
which States parties exercise treaty-based rights, namely, the exercise of sovereignty over territorial
waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the
contiguous zone (Article 33), and the right to exploit the living and non-living resources in the
exclusive economic zone (Article 56) and continental shelf (Article 77).

Even under petitioners’ theory that the Philippine territory embraces the islands and all the
waters within the rectangular area delimited in the Treaty of Paris, the baselines of the Philippines
would still have to be drawn in accordance with RA 9522 because this is the only way to draw the
baselines in conformity with UNCLOS III. The baselines cannot be drawn from the boundaries or
other portions of the rectangular area delineated in the Treaty of Paris, but from the "outermost
islands and drying reefs of the archipelago."

UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as
petitioners claim, diminution of territory. Under traditional international law typology, States acquire
(or conversely, lose) territory through occupation, accretion, cession and prescription, 25 not by
executing multilateral treaties on the regulations of sea-use rights or enacting statutes to comply with
the treaty’s terms to delimit maritime zones and continental shelves. Territorial claims to land
features are outside UNCLOS III, and are instead governed by the rules on general international
law.26

2. No. Under RA 3046, as under RA 9522, the KIG and the Scarborough Shoal lie outside of the
baselines drawn around the Philippine archipelago. Petitioners’ assertion of loss of "about
15,000 square nautical miles of territorial waters" under RA 9522 is similarly unfounded both in
fact and law. On the contrary, RA 9522, by optimizing the location of basepoints, increased the
Philippines’ total maritime space (covering its internal waters, territorial sea and exclusive
economic zone) by 145,216 square nautical miles.

The reach of the exclusive economic zone drawn under RA 9522 even extends way beyond the
waters covered by the rectangular demarcation under the Treaty of Paris.

Section 2 of the law commits to text the Philippines’ continued claim of sovereignty and jurisdiction
over the KIG and the Scarborough Shoal:

SEC. 2. The baselines in the following areas over which the Philippines likewise exercises
sovereignty and jurisdiction shall be determined as "Regime of Islands" under the Republic of the
Philippines consistent with Article 121 of the United Nations Convention on the Law of the Sea
(UNCLOS):

a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and

b) Bajo de Masinloc, also known as Scarborough Shoal.

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.31

Although the Philippines has consistently claimed sovereignty over the KIG 32 and the Scarborough
Shoal for several decades, these outlying areas are located at an appreciable distance from the
nearest shoreline of the Philippine archipelago, 33 such that any straight baseline loped around them
from the nearest basepoint will inevitably "depart to an appreciable extent from the general
configuration of the archipelago

The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago, took pains to
emphasize the foregoing during the Senate deliberations:

What we call the Kalayaan Island Group or what the rest of the world call[] the Spratlys and the
Scarborough Shoal are outside our archipelagic baseline because if we put them inside our
baselines we might be accused of violating the provision of international law which states: "The
drawing of such baseline shall not depart to any appreciable extent from the general configuration of
the archipelago." So sa loob ng ating baseline, dapat magkalapit ang mga islands. Dahil malayo ang
Scarborough Shoal, hindi natin masasabing malapit sila sa atin although we are still allowed by
international law to claim them as our own.

Hence, far from surrendering the Philippines’ claim over the KIG and the Scarborough Shoal,
Congress’ decision to classify the KIG and the Scarborough Shoal as "‘Regime[s] of Islands’ under
the Republic of the Philippines consistent with Article 121" 36 of UNCLOS III manifests the Philippine
State’s responsible observance of its pacta sunt servanda obligation under UNCLOS III. Under
Article 121 of UNCLOS III, any "naturally formed area of land, surrounded by water, which is above
water at high tide," such as portions of the KIG, qualifies under the category of "regime of islands,"
whose islands generate their own applicable maritime zones. 37

3. No. Petitioners’ argument for the invalidity of RA 9522 for its failure to textualize the Philippines’
claim over Sabah in North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did
not repeal, keeps open the door for drawing the baselines of Sabah:

Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as
provided in this Act is without prejudice to the delineation of the baselines of the territorial
sea around the territory of Sabah, situated in North Borneo, over which the Republic of
the Philippines has acquired dominion and sovereignty.

4. No. Whether referred to as Philippine "internal waters" under Article I of the Constitution 39 or as
"archipelagic waters" under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty
over the body of water lying landward of the baselines, including the air space over it and the
submarine areas underneath. UNCLOS III affirms this.

Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters and
of their bed and subsoil. –
 xxxx

The regime of archipelagic sea lanes passage established in this Part shall not in other
respects affect the status of the archipelagic waters, including the sea lanes, or the
exercise by the archipelagic State of its sovereignty over such waters and their air space,
bed and subsoil, and the resources contained therein.

The fact of sovereignty, however, does not preclude the operation of municipal and international law
norms subjecting the territorial sea or archipelagic waters to necessary, if not marginal, burdens in
the interest of maintaining unimpeded, expeditious international navigation, consistent with the
international law principle of freedom of navigation. Thus, domestically, the political branches of the
Philippine government, in the competent discharge of their constitutional powers, may pass
legislation designating routes within the archipelagic waters to regulate innocent and sea lanes
passage.40 

In the absence of municipal legislation, international law norms, now codified in UNCLOS III, operate
to grant innocent passage rights over the territorial sea or archipelagic waters, subject to the treaty’s
limitations and conditions for their exercise.42 Significantly, the right of innocent passage is a
customary international law, 43 thus automatically incorporated in the corpus of Philippine law. 44 No
modern State can validly invoke its sovereignty to absolutely forbid innocent passage that is
exercised in accordance with customary international law without risking retaliatory measures from
the international community.

The fact that for archipelagic States, their archipelagic waters are subject to both the right of
innocent passage and sea lanes passage 45 does not place them in lesser footing vis-à-
vis continental coastal States which are subject, in their territorial sea, to the right of innocent
passage and the right of transit passage through international straits. The imposition of these
passage rights through archipelagic waters under UNCLOS III was a concession by archipelagic
States, in exchange for their right to claim all the waters landward of their baselines, regardless of
their depth or distance from the coast, as archipelagic waters subject to their territorial sovereignty.
More importantly, the recognition of archipelagic States’ archipelago and the waters enclosed by
their baselines as one cohesive entity prevents the treatment of their islands as separate islands
under UNCLOS III.46 Separate islands generate their own maritime zones, placing the waters
between islands separated by more than 24 nautical miles beyond the States’ territorial sovereignty,
subjecting these waters to the rights of other States under UNCLOS III. 47

In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic
zone, reserving solely to the Philippines the exploitation of all living and non-living resources within
such zone. Such a maritime delineation binds the international community since the delineation is in
strict observance of UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the
international community will of course reject it and will refuse to be bound by it.

UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a  sui
generis maritime space – the exclusive economic zone – in waters previously part of the high seas.
UNCLOS III grants new rights to coastal States to exclusively exploit the resources found within this
zone up to 200 nautical miles.53 UNCLOS III, however, preserves the traditional freedom of
navigation of other States that attached to this zone beyond the territorial sea before UNCLOS III.

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. 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.

#3 Fisheries Case
ICJ Reports (1951) 116

PARTIES:

1) United Kingdom of Great Britain and Northern Ireland represented by Sir Eric Beckett, K.C.M.G.,
K.C., Legal Adviser to the Foreign Office, as Agent, and by: Commander R. H. Kennedy, O.B.E.,
R.N. (retired), Hydrographie Department, Admiralty, Mr. W. H. Evans, Hydrographic Departmeiit,
Admiralty, M. Annaeus Schjadt, Jr., of the Norwegian Bar, Legal Adviser to the British Embassy in
Oslo, Mr. W. N. Hanna, Military Branch, Admiralty, Mr. A. S. Armstrong, Fisheries Department,
Ministry of Agriculture and Fisheries, as expert advisers;

v.

2) The Kingdom of Norway, represented by M. Sven Arntzen, Advocate at the Supreme Court of
Norway, as Agent and Counsel, M. Maurice Bourquin, Professor at the University of Geneva and at
the Graduate Institute of International Studies, as Counsel

DOCTRINE: The court considered the methods of drawing the lines but, the court rejected the trace
Parallele which consists of drawing the outer limits of the belt following the coast and all its sinuosity. The
same also rejected the courbe tangente or the arcs of a circle and it is not obligatory under international
law to use these methods of drawing the lines. The court also paid particular attention to the geographical
aspect of the case. The geographical realities and historic control of the Norwegian coast inevitably
contributed to the final decision by the ICJ. The coast of Norway is too indented and is an exception under
international law from the 3 miles territorial waters rule. The fjords, Sunds along the coastline which have
the characteristic of a bay or legal straits should be considered Norwegian for historical reasons that the
territorial sea should be measured from the line of low water mark. Hence, it was agreed on the outset of
both parties and the court that Norway had the right to claim a 4 mile belt of territorial sea. The court
concluded that it was the outer line of the Skaergaard that must be taken into account in admitting the belt
of the Norwegian territorial waters.

FACTS:
On 1911, British trawlers had been seized and condemned for having violated measures taken by the
Norwegian Government specifying the limits within which fishing was prohibited to foreigners. In 1935, a
decree was enacted delimiting the Norwegian fisheries zone. The decree covers the drawing of straight
lines, called “baselines” 4 miles deep into the sea. Such a 4 miles area is reserved for fishing exclusive for
Norwegian nationals.

On September 28th, 1949, the Government of the United Kingdom of Great Britain and Northern Ireland
filed in the Registry an Application instituting proceedings before the Court against the Kingdom of
Norway, the subject of the proceedings being the validity or otherwise, under international law, of the lines
of delimitation of the Norwegian fisheries zone laid down by the Royal Decree of July 12th, 1935, as
amended by a Decree of December xoth, 1937, for that part of Norway which is situated northward of 66"
28.8' (or 66" 28' 48") N. latitude. The Application refers to the Declarations by which the United Kingdom
and Norway have accepted the compulsory jurisdiction of the Court in accordance with Article 36,
paragraph 2, of the Statute. This Application asked the Court to wit;
"(a) to declare the principles of international law to be applied in defining the base-line &
reference to which the Norwegian Government is entitled to delimit a fisheries zone, extending to
6 seaward 4 sea miles from those lines and exclusively reserved for its own nationals, and to
define the said base-lines in so far as it appears necessary, in the light of the arguments of the
Parties, in order to avoid further legal differences between them:
(b) to award damages to the Government of the United Kingdom in respect of al1 interferences by
the Norwegian authorities with British, fishing vessels outside the zone which, in accordance
withthe Court's decision under (a), the Norwegian Government is
entitled to reserve for its nationals."

However, the UK Government argued that (1) Norway could only draw straight lines across bays; (2) that
the length of the baselines drawn across the waters lying between the formations of the skjaergaard must
not exceed 10 miles; (3) certain lines did not follow the general direction of the coast, or did not follow it
sufficiently closely, or that they did not respect the natural connection existing between certain sea areas
and the land formations separating or surrounding them; and (4) that the Norwegian system of
delimitation was unknown to UK and that the system lacked essential notoriety to provide the basis of
historical title enforceable upon the UK. On the other hand, Norway argued that the baselines had to be
drawn in such a way as to respect the general direction of the coast and in a reasonable manner. These
submissions by the UK State Agent were worded to wit;
"The United Kingdom submits that the Court should decide that the maritime limits which Norway
is entitled to enforce as against the United Kingdom should be drawn in accordance with the
following principles:

(1) That Norway is entitled to a belt of territorial waters of fixed bread-- the breadth cannot, as
maximum, exceed 4 sea miles.
(2) That, in consequence, the outer limit of Norway's territorial waters must never be more than 4
sea miles from some point on the base-line
 (3) That, subject to (4) (9) and (IO) below, the base-line must be low-water mark on permanently
dry land (which is part of Norwegian territory) or the proper closing line of Norwegian internal
waters.
(4) That, where there is a low-tide elevation situated within 4 sea miles of permanently dry land,
or of the proper closing line of Norwegian internal waters, the outer limit of territorial waters may
be q sea miles from the outer edge (at low tide) of this low-tide elevation. In no other case may a
low-tide elevation be taken into account.
(5) That Nonvay is entitled to claim as Norwegian internal waters, on historic grounds, al1 fjords
and sunds which fall within the conception of a bay as defined in international law, whether the
proper entrance to the indentation is more or less than IO sea miles wide.
(6) That the definition of a bay in international law is a well-marked indentation, whose
penetration inland is in such proportion to the width of its mouth as to constitute the indentation
more than a mere curvature of the coast.
(7) That, where an area of water is a bay, the principle which determines where the closing line
should be drawn, is that the closing line should be drawn between the natural geographical
entrance points where the indentation ceases to have the configuration of a bay.
(8) That a legal strait is any geographical strait which connects two portions of the high seas.
(9) That Norway is entitled to claim as Norwegian territorial waters, on historic grounds, al1 the
waters of the fjords and sunds which have the character of a legal strait. Where the maritime
belts, drawn from each shore, overlap at each end of the strait, the limit of territorial waters is
formed by the outer rims of these two maritime belts. Where, however, the maritime belts so
drawn do not overlap, the limit follows the outer rims of- each of these two maritime belts, until
they intersect with the straight line,
joining the natural entrance points of the strait, after which intersection the limit follows that
straight line.

(10) That, in the case of the Vestfjord, the outer limit of Norwegian territorial waters, at the south-
westerly end of the fjord, is the pecked green line shown on Charts Nos. 8 and g of Annex 35 of
the Reply.
(11) That Norway, by reason of her historic title to fjords and sunds, is entitled to claim, either as
territorial or as internal waters, the areas of water lying between the island fringe and the
mainland of Norway. In order to determine what areas must be deemed to
lie between the islands and the mainland, and whether these areas are territorial or internal
waters, recourse must be had to Kos. (6) and (8) above, being the definitions of a bay and of a
legal strait.
(12) That Norway is not entitled, as against the United Kingdom,
to enforce any claim to waters not covered by the preceding principles. As between Norway and
the United Kingdom, waters off the coast of Norway north of parallel 66" 28.8' N., which are not
Norwegian by virtue of the above-mentioned principles, are high seas

(13) That Norway is under an international obligation to pay to the United Kingdom compensation
in respect of al1 the arrests since 16th September, 1948, of British fishing vessels in waters,
which are high seas by virtue of the application of the preceding principles.

ISSUE: Whether or not the 1935 Decree concerning the delimitation of the Norwegian fisheries zone is
valid under rules on the international law of the lines of delimitation

RULING: Yes, it is valid. It was ruled by the ICJ that the method employed for the delimitation of the
fisheries zone by the Royal Norwegian Decree of 1935 is valid and not contrary to international law. The
judgment of the court first examined the applicability of the principles put forward by the government of
the UK, then the Norwegian system, and finally the conformity of that system with international law. The
first principle upheld by the UK is that the baselines must be low water mark, this indeed is the criterion
generally adopted my most states and but differ as to its application.

The court considered the methods of drawing the lines but, the court rejected the trace Parallele which
consists of drawing the outer limits of the belt following the coast and all its sinuosity. The same also
rejected the courbe tangente or the arcs of a circle and it is not obligatory under international law to use
these methods of drawing the lines. The court also paid particular attention to the geographical aspect of
the case. The geographical realities and historic control of the Norwegian coast inevitably contributed to
the final decision by the ICJ. The coast of Norway is too indented and is an exception under international
law from the 3 miles territorial waters rule. The fjords, Sunds along the coastline which have the
characteristic of a bay or legal straits should be considered Norwegian for historical reasons that the
territorial sea should be measured from the line of low water mark. Hence, it was agreed on the outset of
both parties and the court that Norway had the right to claim a 4 mile belt of territorial sea. The court
concluded that it was the outer line of the Skaergaard that must be taken into account in admitting the belt
of the Norwegian territorial waters.

The law relied upon mainly international Law of the sea; how far a state can modify its territorial waters
and its control over it, exclusively reserving fishing for its nationals. In this case, rules that are practiced
for instance how long a baseline should be. Only a 10 mile long straight line is allowed and this has been
the practice by most states however it is different in the case of Norway due to the geographic indentation
of the same, its islands and islets and that Norway always opposed any attempt to apply it to its coast.
Thereby, the Court was able to establish the existence and the constituent elements of the Norwegian
system of delimitation. It further held that this system was consistently applied by Norwegian authorities
and that it encountered no opposition on the part of other States. It was also stated that the lines drawn
were in accordance with the traditional Norwegian system and moreover, pointed out that they were a
result of a careful study initiated by Norwegian authorities on 1911.
In the matter of the South China Sea Arbitration
[P.C.A. 2013-19]

Guyssssss, sorry copy-paste ng case briefs to and formatted for easier understanding. 501 pages yung
full text and I don’t have the braincells for it :((((

DOCTRINE:
The Tribunal noted that for the purposes of Article 121(3), the high-tide features at Scarborough
Shoal and the reefs were rocks that cannot sustain human habitation or economic life of their own and so
have no exclusive economic zone or continental shelf. The Tribunal found the same to be true of the
Spratly Islands and so concluded that China, therefore, has no entitlement to any maritime zone in the
area of Mischief Reef or Second Thomas Shoal; they do, however, form part of the exclusive economic
zone and continental shelf of the Philippines as they lie within 200 nautical miles of the Philippines’ coast
and there are no overlapping entitlements in the area with respect to China.

Preface
The South China Sea has, especially in contemporary times, emerged as a region of great
interest to global players, in terms of strategic and economic interests of the competing States. As
Foreign Policy puts it, “There’s no tenser set of waters in the world than the South China Sea. For the last
few years, China and its neighbors have been bluffing, threatening, cajoling, and suing for control of its
resources.”
To best understand the current situation in the South China Sea from a legal point of view, it is
imperative to refer back to the judgment passed by the Arbitral Tribunal of the Permanent Court of
Arbitration last year, in response to the claims brought by Philippines against China, primarily regarding
maritime rights, entitlements and zones in the South China Sea, as well as for the protection of the marine
life and the environment of the region, under the United Nations Convention on the Law of the Sea, 1982.
China has always argued for historic rights, as demarcated by the ‘Nine Dash Line’ on its official
maps of the region in question; other stakeholders, however, dispute this claim, as shown in the arbitral
proceedings. As is noted:
… While it was the Philippines which brought the case, it wasn’t the only interested party in the
Asean. Three other members have claims to parts of the South China Sea or the Spratly Islands or the
Paracels that conflict with China’s expansive nine-dash theory: Brunei, Malaysia, and Vietnam. Indonesia,
Asean’s largest economy, has continuing run-ins with Chinese fishing vessels and occasionally with the
Chinese Coast Guard in its exclusive economic zone.
Now, as the Association of South East Nations (ASEAN) heads towards working on the
enforcement of this arbitration award from last year (2016), and attempting to employ a code of conduct
for the South China Sea, it becomes even more important to look at the arbitral ruling from an objective
vantage point.

Case Brief
The South China Sea Arbitration was conducted between the Republic of the Philippines and the
People’s Republic of China by the Permanent Court of Arbitration (PCA), under the 1982 United Nations
Convention on the Law of the Sea (UNCLOS). The arbitration is related to disputes between the Parties
regarding the legal basis of maritime rights and entitlements, the status of certain geographic features,
and the lawfulness of certain actions taken by China in the South China Sea; in particular, the following
four issues, as raised by Philippines:
1. To resolve a dispute between the parties regarding the source of maritime rights and entitlements
in the South China Sea;
2. To resolve a dispute between the parties concerning the entitlements to maritime zones that
would be generated under the Convention by Scarborough Shoal and certain maritime features in
the Spratly Islands that are claimed by both the parties;
3. To resolve a series of disputes concerning the lawfulness of China’s actions in the South China
Sea, vis-à-vis interfering with Philippine’s rights, failing to protect and preserve the marine
 environment, and inflicting harm on the marine environment (through land reclamation and
construction of artificial islands);
4. To find that China has aggravated and extended the disputes between the Parties by restricting
access to a detachment of Philippines Marines stationed at Second Thomas Shoal.

While China and Philippines are both parties to the UNCLOS, China specifically made a
declaration in 2006 to exclude maritime boundary delimitation from its acceptance of compulsory dispute
settlement. In addition, China has shown disagreement with Philippines’ decision to take the matter to
arbitration and has decided neither to agree with the decision of the Tribunal nor to participate in the
proceedings.
The Tribunal, on its end, has taken cognizance of these factors and has purported to not deal
with delimiting maritime boundaries. Furthermore, the Tribunal did not bar the proceedings, on the basis
of Article 9 of Annex VII of UNCLOS. In addition, the Tribunal also noted that despite China’s absence
from the proceedings, since it is a party to the UNCLOS, the decision of the Tribunal would, in fact, be
binding upon it, pursuant to Article 296 (1) and Article 11 of Annex VII.
China’s Foreign Ministry, further, stated its position with regard to the proceedings by publishing a
Position Paper in 2014. It claimed that the Tribunal lacks jurisdiction over the matter because:
1. The essence of the subject-matter of the arbitration is the territorial sovereignty over the relevant
maritime features in the South China Sea;
2. China and the Philippines have agreed, through bilateral instruments and the Declaration on the
Conduct of Parties in the South China Sea, to settle their relevant disputes through negotiations;
3. Philippines’ disputes would constitute an integral part of maritime delimitation between the two
countries.

Does the Arbitral Tribunal Constituted Under Annex VII to the United Nations Convention on the
Law of the Sea 1982 have jurisdiction? YES.
The Tribunal considered China’s Position Paper as a plea on jurisdiction, and conducted a
separate hearing on the issue of jurisdiction and admissibility. Additionally, the Tribunal also declared that
it would honour China’s declaration of 2006 and the UNCLOS and would neither delve into issues of
maritime boundary delimitation or questions of sovereignty. The Philippines also stated that it, “does not
seek in this arbitration a determination of which Party enjoys sovereignty over the islands claimed by both
of them. Nor does it request a delimitation of any maritime boundaries.”
Pursuant to this, the Tribunal issued its Award on Jurisdiction in October 2015, in which it
concluded that it did indeed have jurisdiction in the case, as per Philippines’ Final Submissions,
and that China’s lack of participation would not prove to be a bar to its proceedings. It, further,
concluded that the treaties China was relying on were either political in nature and not legally
binding, or that they did were legally binding and yet did not bar either Party from alternative
means of dispute resolution. In accordance with Article 283 of the UNCLOS, the Tribunal found that
this requirement was met in the diplomatic communications between the Parties and that Philippines’
initiation of proceedings under the UNCLOS did not constitute an abuse of process as claimed by China.

Does China have historic rights in the maritime region of the South China Sea and the Nine-Dash
Line? NO.
The Tribunal, proceeding with the first two submissions made by the Philippines, considered the
validity of China’s claim to historic rights in the maritime region of the South China Sea and the ‘Nine-
Dash Line’. Through a lengthy analysis of the text and context of the Convention, in line with the
principles set out in the Vienna Convention on the Law of Treaties, the Tribunal established that the
Convention supersedes any treaties in force before its coming into force. It questioned China’s claim to
historical rights in the region, and established that China’s state practice does not show that China had
been enjoying any historical rights in the South China Sea; rather, it was enjoying the freedom of the high
seas and since it did not create bar to other states’ usage of the same, it could not be understood as
being a historical right. Furthermore, since China’s publishing of the same in its Notes Verbales in 2009,
many states have objected to its claim as well. “The Tribunal concludes that the Convention
superseded any historic rights or other sovereign rights or jurisdiction in excess of the limits
imposed therein.” However, the Tribunal also concluded that its jurisdiction was limited to the claims of
historic rights on the maritime region and not to the land masses in the South China Sea, i.e. if it can
claim historic rights on any of the islands, then it may also be able to claim maritime zones (as per the
Convention) on the basis of these islands.

Can certain land features in the disputed islands be characterized as “islands, rocks, low tide
elevations (LTE) or submerged banks”?
Next, the Tribunal looked at Philippines’ submissions 3 to 7, concerning the nature of the features
in the South China Sea. It differentiates between low-tide elevations. high-tide features and rocks. In its
Award on Jurisdiction, the Tribunal clarified that:
This is not a dispute concerning sovereignty over the features, notwithstanding any possible question
concerning whether low-tide elevations may be subjected to a claim of territorial sovereignty. Nor is this a
dispute concerning sea boundary delimitation: the status of a feature as a “low-tide elevation”, “island”, or
a “rock” relates to the entitlement to maritime zones generated by that feature, not to the delimitation of
such entitlements in the event that they overlap.
The Philippines put forward three categories for classifying low-tide elevations: where a low-tide elevation
is located within 12 miles of a high-tide feature, where the low-tide elevation is beyond 12 miles but within
the state’s exclusive economic zone or continental shelf, and where the low-tide elevation is located
beyond the areas of natural jurisdiction.
For the purpose of identifying the nature of the features in the South China Sea, the Tribunal
relied upon satellite imagery that had been conducted on the area and direct surveys that had been
carried out, by navies or otherwise, in the area, and relied upon maps that were sufficiently detailed. They
chose a certain tidal height to maintain uniformity across the features, and decided to rely, in cases where
there had been significant man-made changes, alterations or construction on the features, upon
maps/imagery/surveys that depicted the features as they had been in their original form.
Again the Tribunal relied upon statements previously made by China to obtain their stance on the
nature of the features, since China had neither submitted any document to the Tribunal nor had it
discussed these in its Position Paper.
The Tribunal concluded that Scarborough Shoal, Cuarteron Reef, Fiery Cross Reef, Johnson
Reef, McKennan Reef and Gaven Reef (North) were all found to be high-tide features. The Tribunal
further noted that for the purposes of Article 121(3), the high-tide features at Scarborough Shoal and
the reefs were rocks that cannot sustain human habitation or economic life of their own and so
have no exclusive economic zone or continental shelf. The Tribunal found the same to be true of the
Spratly Islands and so concluded that China, therefore, has no entitlement to any maritime zone in
the area of Mischief Reef or Second Thomas Shoal; they do, however, form part of the exclusive
economic zone and continental shelf of the Philippines as they lie within 200 nautical miles of the
Philippines’ coast and there are no overlapping entitlements in the area with respect to China.
On the contrary, Hughes Reef, Gaven Reef (South), Subi Reef, Mischief Reef and Second
Thomas Shoal were all found to be low-tide elevations, of which Hughes Reef lay within 12 miles of
McKennan Reef and Sin Cowe Island, Gaven Reef (South) lay within 12 miles of Gaven Reef (North) and
Namyit Island, and Subi Reef lay within 12 miles of the high-tide feature of Sandy Cay on the reefs to the
west of Thitu.

Did China violate UNCLOS by interfering with the Philippines’ rights and freedoms within its
EEZs? YES. This includes preventing Philippine fishing around Scarborough Shoal, violating UNCLOS’s
environmental protection provisions through construction and fishing activities that have harmed the
marine environment, and by dangerously operating law enforcement vessels around Scarborough Shoal.
In the issue of Chinese interference with the living and non-living resources (primarily concerned
with fishing practices in the South China Sea and oil and gas exploration and exploitation) of the
Philippines, the Tribunal considered diplomatic statements from China to the Philippines and regulations
related to the matter that China had passed domestically. The Philippines put forward four contentions
related to living resources: China’s prevention of fishing by Philippine vessels at Mischief Reef since
1995, and at Second Thomas Shoal since 1995, China’s revision of the Hainan Regulation and China’s
moratorium on fishing in the South China Sea in 2012. The Tribunal finds that China had breached
Articles 77 and 56of the Convention through the operation of its marine surveillance vessels
(which interfered with Philippines’ oil and gas exploration) and through its moratorium on fishing
which interfered with the exclusive economic zone of the Philippines, respectively.
The Tribunal also found China in breach of Article 58 (3) of the Convention, due to its failure to
prevent fishing by Chinese flagged ships in the exclusive economic zone of the Philippines,
failing to respect the sovereign rights of the Philippines over its fisheries in its exclusive
economic zone.
Submission 10 of the Philippines related to China’s interference with Philippines’ fishing vessels
and practices in the Scarborough Shoal. While both the states had conflicting views on the situation
(China believed that it was Philippines who was causing the interference) and both claimed historic rights
(Philippines distinguished this by clarifying that it only referred to historic fishing rights) to the region, the
Tribunal opined that China was, in fact, in contravention of the Convention by interfering with the
traditional fishing practice of the Philippines in its exclusive economic zone through the deployment of its
official ships in the region. The Tribunal also noted that this decision does not depend on the question of
sovereignty, and that the Tribunal once again refrained from commenting on the matter.
Philippines’ successive contention related to China’s activities on the reefs in the South China
Sea, with regards the practices it had adopted for the purpose of large-scale construction and reclamation
at seven locations in the Spratly Islands, and its practices with regards to fishing in the South China Sea.
Philippines claimed that China had been harming and causing damage to the marine environment of the
South China Sea through these practices and despite objections from the surrounding states, China had
not ceased its actions. It was also noted that while some of the fishing ships were not state-appointed
ships and were being manned by non-state actors, the Chinese government had neither condemned their
actions nor made any efforts to stop them from proceeding. The Tribunal, assisted by three independent
experts on coral reef biology, expert briefs and satellite imagery, found that China was in breach of the
Convention for failing to stop the fishing vessels from engaging in harmful harvesting practices
and also for its island-building activities. The Tribunal further opined that China’s construction on
Mischief Reef, without authorization from Philippines was in violation of Philippines’ sovereign rights in its
exclusive economic zone and continental shelf and a breach of the Convention.

Did China’s recent actions, specifically its land reclamation and construction of artificial islands in
the Spratly Islands after the arbitration was commenced, violated the obligations UNCLOS places
on states to refrain from conduct that “aggravates and extends” a dispute while dispute
resolution proceedings are pending? YES.
The next consideration before the Tribunal was the demeanour of China’s law enforcement
vessels at Scarborough Shoal and the lawfulness of these actions. The Philippines also raised the issue
under the relevant provisions of the Convention on the International Regulations for Preventing of
Collisions at Sea, 1972 (COLREGS). The Tribunal found that China, through the actions of its law
enforcement vessels, endangered Philippine vessels and personnel and created a serious risk of collision
and found China in breach of Article 94 of the Convention.
The Tribunal, in response to Submission 14 of the Philippines, opined that China had, in the
course of the proceedings of this arbitration, aggravated and extended its disputes with Philippines,
through its actions of dredging, artificial island-building and construction activities.

Summary of Philippines’ Claims and Tribunal Rulings

Philippines’ Claim Jurisdictional Merits Ruling
Ruling

1 China’s maritime entitlements in (Deferred to Yes: UNCLOS comprehensively allocates

South China Sea may not merits stage) rights to maritime areas
exceed those established by Jurisdiction Philippines win
UNCLOS granted
2 China’s “nine-dash line” claim is (Deferred to Yes: There is no legal basis for China to
invalid to the extent it exceeds merits stage) claim historic rights to waters in the South
the limits established by Jurisdiction China Sea (so, to the extent that is what
UNCLOS granted the nine-dash line means, it is invalid)
Philippines win

3 Scarborough Shoal generates Jurisdiction Yes: Scarborough Shoal is a rock that

no EEZ or continental shelf granted generates no EEZ
Philippines win

4 Mischief Reef, Second Thomas Jurisdiction
Shoal, and Subi Reef are all granted
LTEs that do not generate
territorial seas or EEZs, and are
not subject to appropriation
Yes: Mischief Reef, Second Thomas
Shoal, and Subi Reef are LTEs
Philippines win

5 Mischief Reef and Second (Deferred to Yes: Mischief Reef and Second Thomas
Thomas Shoal are part of the merits stage) Shoal are part of the EEZ and continental
Philippines’ EEZ and continental Jurisdiction shelf of the Philippines
shelf granted Philippines win

6 Gaven Reef and McKennan
Reef (including Hughes Reef)
are LTEs that generate no
maritime entitlements, but may
be used to determine baselines
to measure territorial sea
Jurisdiction No: Both Gaven and McKennan Reef are
granted above water at high tide; they are rocks
that generate territorial seas but no EEZ
or continental shelf
Philippines loss

7 Johnson Reef, Cuarterton Reef, Jurisdiction Yes: Johnson Reef, Cuarterton Reef, and
and Fiery Cross Reef generate granted Fiery Cross Reef are rocks that generate
no entitlements to EEZ or no EEZ or continental shelf
continental shelf Philippines win

8 China has interfered with the (Deferred to Yes: China has interfered with Philippine
Philippines’ exercise of merits stage) sovereign rights to fishing and
sovereign rights over living and Jurisdiction hydrocarbon exploration within its EEZ
non-living resources within its granted Philippines win
EEZ and continental shelf

9 China has failed to prevent its (Reserved to Yes: China failed to prevent Chinese
nationals and vessels from merits stage) fishermen from fishing within the
exploiting the living resources in Jurisdiction Philippine EEZ
the Philippines’ EEZ granted Philippines win

10 China has prevented Philippine Jurisdiction Yes: China violated the Philippines’
fishermen from pursuing their granted “traditional fishing rights” at Scarborough
livelihoods through traditional Shoal
fishing activities around Philippines win
Scarborough Shoal
11 China has violated UNCLOS’s Jurisdiction Yes: China engaged in environmentally
environmental protection granted harmful fishing/harvesting practices at
obligations at Scarborough Scarborough Shoal and Second Thomas
Shoal and Second Thomas Shoal
Shoal Philippines win

12 China’s occupation and (Deferred to Yes: Environmental protection provisions

construction on Mischief Reef
violate UNCLOS provisions on
artificial islands and
environmental protection, and
are unlawful acts of attempted
appropriation
merits stage) were violated at Mischief Reef; artificial
Jurisdiction island construction violated Philippine
granted sovereign rights within its EEZ; the
“appropriation” claim is moot because
Mischief Reef is an LTE not capable of
appropriation
Philippines win

13 China has violated UNCLOS by Jurisdiction Yes: China violated UNCLOS and other
dangerously operating law granted treaty provisions on maritime safety
enforcement vessels creating Philippines win
serious risk of collision near
Scarborough Shoal

14 China has unlawfully (Deferred to Yes: Although there is no jurisdiction over

aggravated and extended the
dispute by interfering with the
Philippines’ rights of navigation
near Scarborough Shoal,
preventing the rotation and
resupply of Philippine personnel
stationed at Second Thomas
Shoal, and endangering the
health of the personnel there
merits stage) disputes involving military activities such
Jurisdiction as the Second Thomas Shoal standoff,
granted in part, China has aggravated/extended the
denied in part disputes through recent large-scale land
reclamation and artificial island
construction in the Philippine EEZ
Philippines win

15 Going forward China shall (Deferred to Qualified yes: This claim simply asks
respect the rights and freedoms merits stage) China to do what it is required to do under
of the Philippines under Jurisdiction UNCLOS; therefore, no further statement
UNCLOS and comply with its granted is necessary
duties under UNCLOS