1.

Innocent Passage
SECTION 3. INNOCENT PASSAGE IN THE TERRITORIAL SEA
SUBSECTION A. RULES APPLICABLE TO ALL SHIPS

Article 17. Right of innocent passage

Subject to this Convention, ships of all States, whether coastal or

land-locked, enjoy the right of innocent passage through the territorial sea.

Article 18. Meaning of passage

1. Passage means 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.

2. Passage shall be continuous and expeditious. However, passage

includes stopping and anchoring, but only in so far as the same are incidental to
ordinary navigation or are rendered necessary by force majeure or distress or for the
purpose of rendering assistance to persons, ships or aircraft in danger or distress.

Article 19. Meaning of innocent passage

1. Passage is innocent so long as it is not prejudicial to the peace, good order or

security of the coastal State. Such passage shall take place in conformity with this
Convention and with other rules of international law.

2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good

order or security of the coastal State if in the territorial sea it engages in any of the
following activities:

(a) any threat or use of force against the sovereignty, territorial integrity or political
independence of the coastal State, or in any other manner in violation of the principles
of international law
embodied in the Charter of the United Nations;
(b) any exercise or practice with weapons of any kind;
(c) any act aimed at collecting information to the prejudice of the defence or security of
the coastal State;
(d) any act of propaganda aimed at affecting the defence or security of the coastal
State;
(e) the launching, landing or taking on board of any aircraft;
(f) the launching, landing or taking on board of any military device;
(g) the loading or unloading of any commodity, currency or person contrary to the
customs, fiscal, immigration or sanitary laws and regulations of the coastal State;
(h) any act of wilful and serious pollution contrary to this Convention;
(i) any fishing activities;
(j) the carrying out of research or survey activities;
(k) any act aimed at interfering with any systems of communication or any other
facilities or installations of the coastal State;
(l) any other activity not having a direct bearing on passage.

2. Legal Bases for Philippines’ Claim Over Spratley’s island

1
What is the legal basis of the Philippines claim over the Kalayaan Island Group?
Historical/Legal Basis of Claims The Philippines claims the Kalayaan Island Group on
the assumption that after Japan renounced its title to the islands in the San Francisco
Treaty of Peace of 1951, they reverted to being terra nullius because title was not
explicitly passed to another state.

What is the basis of Philippines in claiming Spratly Islands?

The Republic of the Philippines claims the Spratly islands and are based on
sovereignty over the Spratly’s on the issues of Res nullius and geography.

Who has sovereignty over the Spratly Islands?

the Republic of Vietnam
9 The representatives of the Republic of Vietnam declared its sovereignty over the
Spratly Islands and the Paracel Islands in the San Francisco Peace Conference of
1951; China was not invited to participate. ‘0 Both Taiwan and the PRC, however,
repeatedly refuted the claims by all other countries for these islands.

How will you describe Kalayaan Group of islands?

Part of the Spratly Islands, situated within the West Philippine Sea, the Kalayaan
municipality, which includes Pag-asa Island (the administrative center of Kalayaan
Island Group) is 280 nautical miles north-west of Puerto Princesa and 932 kilometres
(579 mi) south-west of Metro Manila. …

What is the legal basis for the Philippines claim on the West Philippine Sea?
The administrative order asserts the Philippine claim over its EEZ in the South China
Sea which conveys the Philippine government’s position that it has sovereign rights
under the 1982 United Nations Convention on the Law of the Sea over the West
Philippine Sea area and “inherent power and right to designate its …

How will you describe Kalayaan Group of Islands?

What nation has the strongest claim under international law to sovereignty over
the Spratly Islands and why?
29 The belt manifests China’s claim of sovereignty over its coast, continental shelf,
exclusive economic zone, adjacent territories, and areas with historical contacts such
as the Spratly Islands. China’s land mass enables it to claim ownership of vast coastal
areas and nearby seas.
Why are the Spratly and Paracel islands important?
The area includes more than 200 small islands, rocks, and reefs, with the majority
located in the Paracel and Spratly Island chains. The islands are important, however,
for strategic and political reasons, because ownership claims to them are used to
bolster claims to the surrounding sea and its resources.
What is special about Spratlys island?
The Spratlys are spread out over a vast area of ocean measuring some 158,000
square miles (409,000 square km). A great number of them are submerged. Another,
called Spratly Island or Storm Island, measures 900 by 1,500 feet (275 by 450
metres). Turtles and seabirds are the only wildlife.

*Res nullius literally means nobody’s property or a thing which has no owner. If the
owner of a property abandons his/her property then that property is called res nullius.
Such property is as much res nullius as a property that is ownerless. Res nullius is
ownerless property and it can be owned by any person. The person who takes first
possession of the res nullius is the owner of that property. Res nullius includes wild
animals and abandoned property.

2
*Res nullius also refers to the principle by which a nation may assert control of an
unclaimed territory. By this principle, a nation gains control when one of its citizens
enters the territory.

3. PART VI
CONTINENTAL SHELF
Article76
Definition of the continental shelf

1. The continental shelf of a coastal State comprises the seabed and subsoil of the
submarine areas that extend beyond its 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 breadth of the
territorial sea is measured where the outer edge of the continental margin does not
extend up to that distance.

2. The continental shelf of a coastal State shall not extend beyond the limits provided
for in paragraphs 4 to 6.
3. The continental margin comprises the submerged prolongation of the land mass of
the coastal State, and consists of the seabed and subsoil of the shelf, the slope and
the rise. It does not include the deep ocean floor with its oceanic ridges or the subsoil
thereof.
4. (a) For the purposes of this Convention, the coastal State shall establish the outer
edge of the continental margin wherever the margin extends beyond 200 nautical
miles from the baselines from which the breadth of the territorial sea is measured, by
either:

(i) a line delineated in accordance with paragraph 7 by reference to the outermost

fixed points at each of which the thickness of sedimentary rocks is at least
1 per cent of the shortest distance from such point to the foot of the continental
slope; or
(ii) a line delineated in accordance with paragraph 7 by reference to fixed points
not more than 60 nautical miles from the foot of the continental slope.
(b) In the absence of evidence to the contrary, the foot of the continental slope shall be
determined as the point of maximum change in the gradient at its base.

5. The fixed points comprising the line of the outer limits of the continental shelf on the
seabed, drawn in accordance with paragraph 4 (a)(i) and (ii), either shall not exceed
350 nautical miles from the baselines from which the breadth of the territorial sea is
measured or shall not exceed 100 nautical miles from the 2,500 metre isobath, which
is a line connecting the depth of 2,500 metres.

6. Notwithstanding the provisions of paragraph 5, on submarine ridges, the outer limit

of the continental shelf shall not exceed 350 nautical miles from the baselines from
which the breadth of the territorial sea is measured. This paragraph does not apply to
submarine elevations that are natural components of the continental margin, such as
its plateaux, rises, caps, banks and spurs.

7. The coastal State shall delineate the outer limits of its continental shelf, where that
shelf extends beyond 200 nautical miles from the baselines from which the breadth of
the territorial sea is measured, by straight lines not exceeding 60 nautical miles in
length, connecting fixed points, defined by coordinates of latitude and longitude.

8. Information on the limits of the continental shelf beyond 200 nautical miles from the
baselines from which the breadth of the territorial sea is measured shall be submitted

3
 by the coastal State to the Commission on the Limits of the Continental Shelf set up
under Annex II on the basis of equitable geographical representation. The
Commission shall make recommendations to coastal States on matters related to the
establishment of the outer limits of their continental shelf. The limits of the shelf
established by a coastal State on the basis of these recommendations shall be final
and binding.

9. The coastal State shall deposit with the Secretary-General of the United Nations
charts and relevant information, including geodetic data, permanently describing the
outer limits of its continental shelf. The Secretary-General shall give due publicity
thereto.

10. The provisions of this article are without prejudice to the question of delimitation of
the continental shelf between States with opposite or adjacent coasts.

Article77
Rights of the coastal State over the continental shelf

1. The coastal State exercises over the continental shelf sovereign rights for the
purpose of exploring it and exploiting its natural resources.
2. The rights referred to in paragraph 1 are exclusive in the sense that if the coastal
State does not explore the continental shelf or exploit its natural resources, no one
may undertake these activities without the express consent of the coastal State.
3. The rights of the coastal State over the continental shelf do not depend on
occupation, effective or notional, or on any express proclamation.
4. The natural resources referred to in this Part consist of the mineral and other non-
living resources of the seabed and subsoil together with living organisms belonging to
sedentary species, that is to say, organisms which, at the harvestable stage, either are
immobile on or under the seabed or are unable to move except in constant physical
contact with the seabed or the subsoil.

4. Article78. Legal status of the superjacent waters and air space and the rights and
freedoms of other States

1. The rights of the coastal State over the continental shelf do not affect the legal
status of the superjacent waters or of the air space above those waters.

2. The exercise of the rights of the coastal State over the continental shelf must not
infringe or result in any unjustifiable interference with navigation and other rights
and freedoms of other States as provided for in this Convention.
5 and 6. 2. Freedom of the high seas

Part VII of the 1982 Convention deals with the high seas. According to Article 86, the term
‘high seas’ signifies those parts of the sea that are not included in the exclusive economic
zone (EEZ), territorial sea or internal waters of a state, or in the archipelagic waters of an
archipelagic state. Article 87 elaborates on the freedoms of the high seas in the following
words:

Article 87

Freedom of the high seas

1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high
seas is exercised under the conditions laid down by this Convention and by other rules of
international law. It comprises, inter alia, both for coastal and land-locked States:
a. freedom of navigation;

4
b. freedom of overflight;
c. freedom to lay submarine cables and pipelines, subject to Part VI;
d. freedom to construct artificial islands and other installations permitted under international
law, subject to Part VI;
e. freedom of fishing, subject to the conditions laid down in section 2;
f. freedom of scientific research, subject to Parts VI and XIII.

2. These freedoms shall be exercised by all States with due regard for the interests of other
States in their exercise of the freedom of the high seas, and also with due regard for the
rights under this Convention with respect to activities in the Area.

There are a number of other basic features of the high seas, and some of the more
significant ones are as follows:

a) The high seas should be reserved for peaceful purposes, albeit that the meaning and
scope of the phrase ‘peaceful purposes’ remains controversial in international law.
b) No state may validly purport to subject any part of the high seas to its sovereignty.
c) Every state, whether coastal or land-locked, has the right to sail ships flying its flag on the
high seas.
d) All states are entitled to lay submarine cables and pipelines on the bed of the high seas
beyond the continental shelf.

3. Rights and duties of states relating to shipping

Since all states have freedom of navigation in the high seas, the 1982 Convention outlines in
some detail the rights and duties of states regarding shipping so that the freedoms
guaranteed under the Convention can be exercised by all states. Article 91 requires every
state to fix the conditions for the grant of its nationality to ships, for the registration of ships in
its territory and for the right to fly its flag. Ships have the nationality of the state whose flag
they are entitled to fly. However, the Convention stipulates that a genuine link must exist
between the state and the ship.

Several cases before the International Tribunal on the Law of the Sea (ITLOS), the main
judicial body established by the Convention, have dealt with the issue of nationality of ships,
notably the first ever case to come before the Tribunal, the M/V Saiga Case between St
Vincent (and the Grenadines) and Guinea.

Article 92 stipulates the status of ships as follows:

2. These freedoms shall be exercised by all States with due regard for the interests of other
States in their exercise of the freedom of the high seas, and also with due regard for the
rights under this Convention with respect to activities in the Area.

Article 92

Status of ships

1. Ships shall sail under the flag of one State only and, save in exceptional cases expressly
provided for in international treaties or in this Convention, shall be subject to its exclusive
jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port
of call, save in the case of a real transfer of ownership or change of registry.
2. A ship which sails under the flags of two or more States, using them according to
convenience, may not claim any of the nationalities in question with respect to any other
State, and may be assimilated to a ship without nationality.

Article 94 outlines the duties of states regarding ships flying their flag:
Article 94

Duties of the flag State

5
1. Every State shall effectively exercise its jurisdiction and control in administrative, technical
and social matters over ships flying its flag.

2. In particular every State shall:

a. maintain a register of ships containing the names and particulars of ships flying its flag,
except those which are excluded from generally accepted international regulations on
account of their small size; and
b. assume jurisdiction under its internal law over each ship flying its flag and its master,
officers and crew in respect of administrative, technical and social matters concerning the
ship.

3. Every State shall take such measures for ships flying its flag as are necessary to ensure
safety at sea with regard, inter alia, to:

a. the construction, equipment and seaworthiness of ships;

b. the manning of ships, labour conditions and the training of crews, taking into account the
applicable international instruments;

c. the use of signals, the maintenance of communications and the prevention of collisions.

4. Such measures shall include those necessary to ensure:

a. that each ship, before registration and thereafter at appropriate intervals, is surveyed by a
qualified surveyor of ships, and has on board such charts, nautical publications and
navigational equipment and instruments as are appropriate for the safe navigation of the
ship;

b. that each ship is in the charge of a master and officers who possess appropriate
qualifications, in particular in seamanship, navigation, communications and marine
engineering, and that the crew is appropriate in qualification and numbers for the type, size,
machinery and equipment of the ship;

c. that the master, officers and, to the extent appropriate, the crew are fully conversant with
and required to observe the applicable international regulations concerning the safety of life
at sea, the prevention of collisions, the prevention, reduction and control of marine pollution,
and the maintenance of communications by radio.

5. In taking the measures called for in paragraphs 3 and 4 each State is required to conform
to generally accepted international regulations, procedures and practices and to take any
steps which may be necessary to secure their observance.

6. A State which has clear grounds to believe that proper jurisdiction and control with respect
to a ship have not been exercised may report the facts to the flag State. Upon receiving such
a report, the flag State shall investigate the matter and, if appropriate, take any action
necessary to remedy the situation.

7. Each State shall cause an inquiry to be held by or before a suitably qualified person or
persons into every marine casualty or incident of navigation on the high seas involving a ship
flying its flag and causing loss of life or serious injury to nationals of another State or serious
damage to ships or installations of another State or to the marine environment. The flag State
and the other State shall cooperate in the conduct of any inquiry held by that other State into
any such marine casualty or incident of navigation.

4. Controlling piracy

Piracy is one of the major problems that ships encounter in the high seas. Piracy is an old
problem and the law on piracy has evolved along with the freedom of the high seas. Piracy
consists of any illegal acts of violence or detention, or any act of depredation, committed for
6
private ends by the crew or the passengers of a private ship or a private aircraft, and directed
on the high seas against another ship or aircraft, or against persons or property on board
such ship or aircraft, or against a ship, aircraft, persons or property in a place outside the
jurisdiction of any state.

Article 105 of the Convention allows every state to seize a pirate ship or aircraft, or a ship or
aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the
property on board, if it is on the high seas or in any other place outside the jurisdiction of any
state.

5. Right of hot pursuit

The law of the sea has traditionally acknowledged the right of hot pursuit of foreign ships by
coastal states. The hot pursuit of a foreign ship may be undertaken by a coastal state when
the competent authorities of that state have good reason to believe that the ship has violated
the laws and regulations of that state.

There are a number of conditions that have to be met when exercising such pursuit. For a
start, such pursuit must be commenced when the foreign ship or one of its boats is within the
internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the
pursuing state. It may only be continued outside the territorial sea or the contiguous zone if
the pursuit has not been interrupted.
The right of hot pursuit applies mutatis mutandis to violations in the EEZ or on the continental
shelf, including safety zones around continental shelf installations, of the laws and
regulations of the coastal state applicable in accordance with the Convention to the EEZ or
the continental shelf, including such safety zones.

The right of hot pursuit is mainly to pursue ships in the high seas or the EEZs of other states.
It must be stopped as soon as the ship pursued enters the territorial sea of its own flag state
or of a third state. Hot pursuit is not deemed to have begun unless the pursuing ship has
satisfied itself by such practicable means as may be available that the ship pursued, or one
of its boats or other craft working as a team and using the ship pursued as a mother ship, is
within the limits of the territorial sea, or, as the case may be, within the contiguous zone or
the EEZ or above the continental shelf.’

The pursuit may only be commenced after a visual or auditory signal to stop has been given
at a distance that enables it to be seen or heard by the foreign ship. Finally, the right of hot
pursuit may be exercised only by warships or military aircraft, or other ships or aircraft clearly
marked and identifiable as being on government service and authorised to that effect. Legal
issues related inter alia to the provisions on hot pursuit have arisen in cases before the
ITLOS, for example, the ‘Volga’ Case between the Russian Federation and Australia.

6. Rights and duties of states regarding the conservation and management of the living
resources of the high seas

One of the freedoms of the high seas available to all states is the freedom of fishing. Of
course, like any other freedom it is not unfettered. There are a number of limitations and
qualifications to it imposed by various international treaties. One of these concerns the rights
and duties of states regarding the conservation and management of the living resources of
the high seas.

Although the high seas areas located beyond the 200-mile EEZ are not rich in fisheries
resources, the freedom of fishing on the high seas is a significant freedom of all states,
whether coastal or land-locked. To make this freedom meaningful and ensure that its
exercise produces no detrimental impact on the fisheries resources of the EEZs of coastal
states, the 1982 Convention accords certain rights to coastal states and imposes duties
relating to the conservation and management of the living resources of the high seas.

Article 116 proclaims that all states have the right to fish on the high seas. Article 117 states
that they also have a duty: 
7
All States have the duty to take, or to cooperate with other states in taking, such measures
for their respective nationals as may be necessary for the conservation of the living resources
of the high seas.
Similarly, Article 118 outlines a duty of cooperation of states in the conservation and
management of living resources.

Those states whose nationals exploit identical living resources, or different living resources in
the same area, are required to enter into negotiations with a view to taking the measures
necessary for the conservation of the living resources concerned. They also are required, as
appropriate, to cooperate to establish subregional or regional fisheries organisations to this
end. With regard to the conservation of the living resources of the high seas, Article 119
provides as follows:

Article 119
Conservation of the living resources of the high seas
1. In determining the allowable catch and establishing other conservation measures for
the living resources in the high seas,

States shall:

a. take measures which are designed, on the best scientific evidence available to the States
concerned, to maintain or restore populations of harvested species at levels which can
produce the maximum sustainable yield, as qualified by relevant environmental and
economic factors, including the special requirements of developing States, and taking into
account fishing patterns, the interdependence of stocks and any generally recommended
international minimum standards, whether subregional, regional or global;

b. take into consideration the effects on species associated with or dependent upon
harvested species with a view to maintaining or restoring populations of such associated or
dependent species above levels at which their reproduction may become seriously
threatened.

2. Available scientific information, catch and fishing effort statistics, and other data relevant to
the conservation of fish stocks shall be contributed and exchanged on a regular basis
through competent international organisations, whether subregional, regional or global,
where appropriate and with participation by all States concerned.

3. States concerned shall ensure that conservation measures and their implementation do
not discriminate in form or in fact against the fishermen of any State.

7. Straddling and highly migratory fish stocks

An Agreement for the implementation of the provisions of the 1982 Convention relating to the
conservation and management of straddling and highly migratory fish stocks was concluded
in 1995. This Agreement is an elaboration of the provisions of the 1982 Convention and is
designed to implement Articles 63 and 64 and some other sections of Part VII of the
Convention. Straddling fish stocks are those that straddle the boundary of a state’s EEZ and
the high seas, while highly migratory fish stocks are those that generally roam over large
distances and may be found in numerous EEZ jurisdictions and the high seas.

The 1995 Agreement:

a) emphasises the special role of regional fisheries management organisations in the

conservation and management of straddling fish stocks and highly migratory fish stocks

b) elaborates upon the obligation of states to cooperate in the conservation and management
of straddling fish stocks and highly migratory fish stocks

c) imposes a duty upon states not to authorise vessels to fish for such fish stocks unless the
state is party to, or cooperates with, any subregional or regional fisheries management
8
organisation or arrangement which has competence to establish conservation and
management measures for the stock concerned.
The aim of the agreement is to encourage and empower the arrangements of regional
fisheries organisations to control illegal fishing within high seas areas found in regional or
subregional seas.

8. Other international instruments

There are a number of other international instruments that have dealt with the issues
concerning the management and conservation of the living resources of the high seas. For
instance, the United Nations Conference on Environment and Development (UNCED) held in
Rio de Janeiro, Brazil, from 3 to 14 June 1992 included a section (Section C) entitled
‘Sustainable Use and Conservation of Marine Living Resources of the High Seas’, in which it
was pointed out that management of high seas fisheries, including the adoption, monitoring
and enforcement of effective conservation measures, was inadequate in many areas and that
some resources were over-utilised.

It further noted that: 

There are problems of unregulated fishing, overcapitalization, excessive fleet size, vessel
reflagging to escape controls, insufficiently selective gear, unreliable databases and lack of
sufficient cooperation between States. Actions by States whose nationals and vessels fish on
the high seas, as well as cooperation at the bilateral, sub-regional, regional and global levels,
is essential particularly for highly migratory species and straddling stocks.

Accordingly, in paragraph 17.52(e) it was recommended that: 

States should convene, as soon as possible, an intergovernmental conference under the

United Nations auspices, taking into account relevant activities at the sub-regional, regional
and global levels, with a view to promoting effective implementation of the provisions of the
United Nations Convention on the Law of the Sea on straddling fish stocks and highly
migratory fish stocks.

It was hoped that the Conference would identify and assess existing problems related to the
conservation and management of such fish stocks, consider means of improving cooperation
on fisheries among states and formulate appropriate recommendations. UNCED also called
on states to take effective action to deter reflagging of vessels by their nationals as a means
of avoiding compliance with applicable conservation and management rules for fishing
activities on the high seas.

7. Doctrine of Flags of Convenience

What is a Flag of Convenience?
Sailing a ship under a flag of convenience is a business practice that a growing number of
ship owners take. The ship operates and is taxed under the laws of the country for which it is
flagged. Registering the vessel in a different country than the one where the owner lives
helps them save money. In some cases, it also allows the ship to operate under less
stringent regulations.
Why Do Ships Need a Flag of Convenience?
International law requires every merchant ship to register in a country. The country of
registration is the ship’s “flag state.” Ship registration gives the ship its nationality, even when
it differs from that of the owners. The flag allows the ship to travel to any destination where
citizens of the same nation may travel.
The ship’s flag state also exercises regulatory control over the vessel. The Law of the
Sea requires the flag state to inspect the vessel regularly, issue safety and environmental

9
protection documents, and certify the equipment on-board and the crew. A group called “the
registry” performs these acts under the government, a private agency, or a hybrid of the two.
Ship registration has been in practice since people started doing business across the seas
centuries ago. Originally, registration ensured ships were locally built and carried local crews.
Today, registration helps authorities document ownership and prove nationality. It safeguards
treaty practices and increases financing options.
Traditional Vs Open Registries
Every nation treats ship registration differently. Some only allow traditional registry, meaning
they allow the registration of vessels owned by local residents or companies. Other nations
allow open registries or ships that sail under “flags of convenience.”
Every ship that travels internationally must register with someone. Nations with open
registries often make it easier to register a vessel. Some allow you to register your ship
online. Those with traditional registries sometimes allow ships to register even if you aren’t a
resident. For example, they might require you to hire a percentage of your crew locally.
The differences between laws and taxes among nations also make some more popular than
others for the registry. The top five flag states with the largest number of registered vessels
are:
1. Panama
2. Liberia
3. Marshall Islands
4. Hong Kong
5. Singapore
While the list is extensive, these five nations control 77% of the total number of vessels
registered under flags of convenience. Panama leads the way with the largest number of
registered vessels in the world. How did a small nation with a population of only three million
become such an important trade route? Its long, slender shape and position make it ideal for
maritime trade. Panama sits between the Pacific and Atlantic oceans.
Panama is one of the Seven Wonders of the World, with a 48-mile canal that handles 14,000
ships annually. These features make it one of the most desired flags for ships to fly under.
However, Panama has a limited history of trade.
The country of Panama is one that offers online registration of vessels. It also gives the
advantage of cheaper foreign labor. Most important to some ship owners is the fact that they
don’t have to pay any income taxes. More ships fly the Panama flag than the flags for the
U.S. and China combined!
The Controversy Over Flags
As with any issue or practice, there are both proponents and critics of open registries. Those
in favor of the practice want to save money. Cheap labor and slack regulations make them
more competitive in a global industry.
Those against open registries complain about the lack of regulations and oversight. The
practice of sailing under a flag of convenience began in the 1920s after the end of WWI. The
phrase itself didn’t come into use until the 1950s. Early on, images of dilapidated vessels and
“rust buckets” emerged. These vessels were often operated by overworked crews.
Today, some people claim that top countries like Panama and Liberia follow the requirements
imposed on them. They use maritime experts to ensure vessels are seaworthy and they
operate safely. Others cite the high number of accidents involving Panamanian-registered
ships as evidence Panama is still cutting corners. Some experts contribute the numbers to
the greater number of ships on the water.

10
Panama has long been the target of charges of corruption. It is also known that other nations
with fewer vessel registrations follow substandard regulations. One of the biggest concerns is
the ability of ship owners to remain anonymous. In many cases, identifying the owner of a
vessel is impossible.
This ability to stay hidden gives some ship owners the ideal setting for criminal activity. These
acts might harm the environment or put crew members at a greater risk of injury. When legal
issues arise, there’s no way to identify and take legal action against the guilty party. As a
result, these vessels are now targeted by other nations when they make call in one of the
host nation’s ports.
International Law of the Sea
Oceans run through the planet much like our veins run through our bodies. They deliver
oxygen to the atmosphere and absorb carbon from it. The oceans produce life-sustaining air,
food, and water. They provide a source of entertainment, livelihood, and transportation.
The International Law of the Sea is a body of customs, treaties, and international agreements
used to govern the oceans. These laws help preserve marine life, maintain order, and
maintain peace on the sea.
The different countries in the world are both separated and joined by our oceans. Only by
implementing international law can we protect the lifeblood of the planet. Granted, some gaps
in the laws do exist. Many people believe that the option to fly a flag of convenience is one of
them. This option allows shipowner to follow lax rules and regulations observed in some
countries.
Maritime law deals with injuries and property damage in domestic waters in the U.S. The Law
of the Sea deals with international waters. Failing to follow these laws can have a significant
impact on the planet or on the workers on a ship.
Even when ship owners follow the law and safety regulations, jobs on the high seas are
inherently more dangerous than others. The work environment comes with greater risks. It
also places injured crew members long distances from needed medical attention.
Maritime law applies to injuries of sailors, rig workers, and longshoreman. It covers private
entities including ship owners and their employees. It also applies to cruise ships that cater to
passengers. Types of maritime law include:
 The Jones Act – Formally called the Merchant Marine Act of 1928, this law gives
injured seamen the right to sue the shipowner for negligence that caused their injuries.
 The Death on the High Seas Act (DOHSA) gives relatives of soldiers who die more
than three nautical miles from the shore the right to sue the employer. The types of
damages available include lost financial support and funeral expenses.
 The Outer Continental Shelf Lands Act (OCSLA) – Provides financial compensation to
injured oil rig workers and other non-sailor professionals.
 The Longshore and Harbor Workers’ Compensation Act (LHWCA) – Gives rights to
non-sailors in the maritime industry.
In contrast, the Law of the Sea deals with international agreements that apply to all nations.
These laws accumulated over centuries. The rules and principles were codified into law
during the 1994 United Nations Convention on the Law of the Sea (UNCLOS.) Specifically, it
deals with the following issues:
– Jurisdiction Over Coastal Waters:  Many countries have extended coastal waters to
include waters to 12 nautical miles beyond the low water line or baseline. UNCLOS sets
territorial waters at 12 nautical miles, also putting a contiguous zone at 24 nautical miles in
place.

11
– Ownership of Natural Resources: Countries have the legal right to claim up to 200
nautical miles from the baseline, or 350 nautical miles where the continental shelf extends
that far as their Exclusive Economic Zone (EEZ). The rights extend to mineral deposits
including oil and gas.
– Navigational Rights: Vessels from other nations have a legal right to pass through
territorial waters to the extent necessary to reach their destination. The “innocent passage”
doctrine prevents foreign vessels from breaking laws or causing harm to the nation that owns
the territorial waters.
Flag of Convenience: The Abuse of International Law of the Sea?
Some critics of flag of convenience registrations blame gaps in the laws for resulting issues.
Others blame the failure of nations to apply the laws. Others point out that all FOC ship
owners aren’t bad. Many observe the safety measures and pay their workers a fair wage. It’s
the negligence of those ship owners who always put finances first that puts crew members at
a higher risk of serious injury or death.
What Happens When Maritime Accidents Occur Due to the Use of Flags?
Regardless of which side of the debate you’re on, serious maritime accidents occur with
vessels flying a flag of convenience. The combination of more ships carrying the flag and the
lower safety regulations means the problem will only grow larger. When an injury or death
occurs because of a safety breach, someone is liable. But whom?

8. The principle of intergenerational equity states that every generation holds the Earth in
common with members of the present generation and with other generations, past and future.
The principle articulates a concept of fairness among generations in the use and
conservation of the environment and its natural resources (see also Conservation of Natural
Resources; Environment, International Protection). The principle is the foundation of
sustainable development.
Intergenerational equity represents a widely recognized principle of international
environmental law providing for the preservation of natural resources and the environment for
the benefit of future generations. It has roots in the 1972 Stockholm Declaration [69] and
forms a core tenet of sustainable development frameworks [70].
The UNFCCC embeds intragenerational equity within the international climate change
regime as a founding principle. Article 3 frames the concept in terms of the need to “ protect
the climate system for the benefit of present and future generations of humankind” [71],
which is reinforced by the inclusion of sustainable development as a further core principle
within the UNFCCC framework [72].
The continuing relevance of intergenerational equity as a guiding principle shaping climate
action is reaffirmed by the Paris Agreement preamble [73], yet its precise conceptualization
and implementation measures, beyond the implicit benefits of climate mitigation for future
generations generally, remain unclear. Intergenerational equity, despite being widely referred
to in the discourse and instruments of international institutions [74], is often provided for in
the form of nonbinding “soft law” or remains undefined and open to interpretation, as in the
UNFCCC.
The status of the principle before the courts is contested and it is observed by Bell,
McGillivray et al. that the inherent difficulty in defining intergenerational equity means that it is
very seldom invoked in judicial decisions [75].
*Intragenerational equity is concerned with equity between people of the same generation
and aims to assure justice among human beings that are alive today, as reflected in Rio
Principle 6, mandating particular priority for the special situation and needs of developing

12
countries, particularly the least developed and those most environmentally vulnerable.
(Oxford Handbook of International Environmental Law, chapter 1 - Equity, D. Shelton, 2008)
The special situation and needs of developing countries, particularly the least developed and
those most environmentally vulnerable, shall be given special priority. International actions in
the field of environment and development should also address the interests and needs of all
countries. (Rio Principle 6)
9. The precautional Principle is, therefore, a proactive principle that calls on decision-makers
to make a decision on the technological innovation, political decision-making, legislative
enactments within the service of recent and creative ways of living that riskless hurt to the
health of humans and nature and sustain the viability of the region.
To protect biological diversity from the potential risks posed by living modified organisms
resulting from modern biotechnology, the Cartagena Protocol was adopted in 2000 as the
first protocol under Article 19 of the Convention on Biological Diversity. It is based on the
precautionary principle and aims to ensure the safe handling, transport, and use of living
modified organisms. Common living modified organisms include agricultural crops that have
been genetically modified for greater productivity or for resistance to pests or diseases.
IMPLEMENTING THE PRECAUTIONARY PRINCIPLE
a) Humility and restraint, acknowledging human undependability within the hunt for certainty,
the limits of science, and therefore the tendency to over-reach within the quest for human
security and well-being.
b) Assuming the burden of responsibility for our actions, and so the need to justify our
activities in the light of moral principles, public responsibility, and available information, and
not leave this task to others.
c) Promoting democratic processes of sensible ethical deliberation and deciding throughout
that citizens ponder a plurality of often competitive goods, and provide reasoned arguments
on behalf of most popular courses of action that are justified and are fair and equitable for
present and future generations to come.
d) Imagining new ways in which of living that is plenty liberating for humans and nature alike
and brazenly assessing all alternatives.
e) Preserving, at whatever costs are necessary, sufficient genetic diversity and resilient
natural systems can assure the indefinite biological process flourishing of life on the earth.
f) Making the mandatory transformations in personal, economic, and social life which will
understand a more simple and sustainable future for all.
DIFFERENT FORMULATIONS OF THE PRECAUTIONARY PRINCIPLE
1. Rio Declaration, 1992 Principle 15: With the aim to safeguard the atmosphere, the
preventative principle is wide applied by all the states in line with their capabilities. Whenever
there happens any threat about serious or irreversible harm it shall not be used as a reason
for suspending cost-effective measures to stop environmental degradation.
2. Convention on Biological Diversity 1992: It states that where there’s a threat of serious
reduction or loss of biological diversity, lack of full scientific certainty should not be used as a
reason for suspending measures to avoid or minimize such a threat.
3. Framework Convention on international global climate change 1992: The Parties ought to
take precautionary measures to anticipate, stop, or minimize the causes of worldwide global
climate change and mitigate its adverse effects. where there are threats of significant or
irreversible harm, lack of full scientific certainty shouldn’t be used as a reason for suspending
such measures, taking into consideration that policies and measures to deal with
international global climate change need to be cost-effective so as to ensure global
advantages at the lowest possible cost.

13
4. The UK biodiversity Action plan, 1994: In line with the preventative principle, where
interactions are difficult and where the offered evidence suggests that there’s a major
probability of injury to our biodiversity heritage occurring, conservation measures are
appropriate, even in the absence of conclusive scientific proof that the damage will occur.
PRECAUTIONARY PRINCIPLE AS A RULE OF CUSTOMARY LAW
The standing of the precautionary principle as a rule of customary law is critical as a result of
a rule of customary law creates obligations for all states, except people who have persistently
objected to the practice and its legal consequences. The statute of the International Court of
Justice defines customary law of nations as “evidence of general practice accepted as law.
The Republic of Nicaragua case and the North Sea continental shelf case complement this
text of the Statute and clarify two needs of the customary law of nations. according to the
International Court of Justice, customary law of nations arises once nations follow the
practice in an extensive and nearly uniform manner and this practice is followed with the
conviction that it’s obligatory to do this under the law of nations (opinion Juris). Consequently,
the opposition of some states doesn’t interfere with the development of a customary rule.
However, the simplest indicators of state practice remain the instruments of the law of
nations and state domestic law. Currently, the precautionary principle is employed in more
than ninety international declarations and agreements.
1. Inchong v Hernandez
ISSUE: Whether or not a law may invalidate or supersede treaties or generally accepted
principles.
FACTS: Lao Ichong, representing himself and other resident-aliens who are engagedin the
retail industry in the Philippines petitioned the Supreme Court to declare RA1180 (An Act to
Regulate the Retail Business) as unconstitutional. One of the provisions of the Act was the
prohibition of persons, not Filipino citizens, and against associations, partnerships, or
corporations not wholly-owned by citizens of the Philippines from engaging directly or
indirectly in the retail trade. Petitioners said that the act denies them the equal protection of
laws and deprives them of their liberty and property without due process.
DECISION: Yes, a law may supersed a treaty or a generally accepted principle.
RATIO DECIDENDI: In this case, the Supreme Court saw no conflict between the raised
generally accepted principle and with RA 1180. The equal protection of the law clause “does
not demand absolute equality amongst residents; it merely requires that all persons shall be
treated alike, under like circumstances and conditions both as to privileges conferred and
liabilities enforced”; and, that the equal protection clause “is not infringed by legislation which
applies only to those persons falling within a specified class, if it applies alike to all persons
within such class, and reasonable grounds exist for making a distinction between those who
fall within such class and those who do not.”
2. Justice v. Hon. Lantion
FACTS:
In accordance to "Extradition Treaty Between the Government of the Republic of the
Philippines and the Government of the United States of America" (RP-US Extradition Treaty),
the Department of Justice received from the Department of Foreign Affairs U.S. Note Verbale
No. 0522 containing a request for the extradition of Mark Jimenez to the United States
attached with the Grand Jury Indictment, the warrant of arrest issued by the U.S. District
Court, Southern District of Florida, and other supporting documents on June 18, 1999. Mr.
Jimenez was charged with the following:

i. 18 USC 371 (Conspiracy to commit offense or to defraud the United States; 2 counts;
Maximum Penalty: 5 years/count)

14
ii. 26 USC 7201 (Attempt to evade or defeat tax;4 counts; Maximum Penalty:5 years/count)
iii. 18 USC 1343 (Fraud by wire, radio, or television; 2 counts; Maximum Penalty: 5
years/count)
iv. 18 USC 1001 (False statement or entries; 6 counts; Maximum Penalty: 5 years/count)
v. 2 USC 441f (Election contributions in name of another; 33 counts; Maximum Penalty:
less than 1 year)
The Department of Justice denied Mr. Jimenez request for extradition documents based
on the following:
i. Article 7 of the Extradition Treaty between the Philippines and the United States
enumerates the documentary requirements and establishes the procedures under which the
documents submitted shall be received and admitted as evidence. Evidentiary requirements
are under Section 4 of P.D. No. 1069. Evaluation by the Department of the documents is not
a preliminary investigation nor akin to preliminary investigation of criminal cases. Thus, the
constitutionally guaranteed rights of the accused in all criminal prosecutions are not available.
It merely determines the compliance of the Requesting Government with the procedures and
requirements under the relevant law and treaty. After the filing of the petition for extradition,
the person sought to be extradited will be furnished by the court with copies of the petition.
ii. The Department of Justice under P.D. No. 1069 is the counsel of the foreign
governments in all extradition requests. Furthermore, Article 7 of the RP-US Extradition
Treaty provides that the Philippine Government must represent the interests of the United
States in any proceedings arising out of a request for extradition. Thus, it must comply with
the request of the United States Government to prevent unauthorized disclosure of the
subject information.

iii. Article 26 of the Vienna Convention on the Law of Treaties provides that "Every treaty in
force is binding upon the parties to it and must be performed by them in good faith".
Extradition is a tool of criminal law enforcement and to be effective, requests for extradition or
surrender of accused or convicted persons must be processed expeditiously.

Mr. Jimenez filed with filed with the Regional Trial Court of the National Capital Judicial
Region a petition presided over by the Honorable Ralph C. Lantion against the Secretary of
Justice, the Secretary of Foreign Affairs, and the Director of the National Bureau of
Investigation:
i. mandamus to compel the Department to furnish the extradition documents
ii. certiorari to set aside Department’s letter dated July 13, 1999 denying his request
iii. prohibition to restrain the Department from considering the extradition request and from
filing an extradition petition in court
iv. enjoin the Secretary of Foreign Affairs and the Director of the NBI from performing any
act directed to the extradition
v. application for the issuance of a temporary restraining order and a writ of preliminary
injunction
Honorable Ralph C. Lantion ordered the Secretary of Justice, the Secretary of Foreign
Affairs and the Director of the National Bureau of Investigation to maintain the status quo by
refraining from committing the acts complained of, from conducting further proceedings in

15
connection with the request of the United States Government, from filing the corresponding
Petition with a Regional Trial court and from performing any act directed to the extradition for
a period of 20 days from service of the order.
Hon. Hilario G. Davide, Jr., Chief Justice of the Supreme Court of the Philippines ordered
Hon. Lantion to cease and desist from enforcing the order. Due to transcendental
importance, the Court brushed aside peripheral procedural matters which concern the
proceedings in Civil Case No. 99-94684 and the TRO and proceded on the issues.
ISSUE:
i. Whether or NOT the evaluation procedure is not a preliminary investigation nor akin to
preliminary investigation of criminal cases
ii. Whether or NOT the twin basic due process rights granted by Sec. 3, Rule 112 of the
Rules of Court on the right to be furnished a copy of the complaint, the affidavits, and other
supporting documents and the right to submit counter-affidavits and other supporting
documents within 10 days from receipt is dispensable
iii. Whether or NOT the right of the people to information on matters of public concern
granted under Sec. 7 of Art. III of the 1987 Constitution is violated
HELD: DISMISSED for lack of merit. Petitioner is ordered to furnish private respondent
copies of the extradition request and its supporting papers, and to grant him a reasonable
period within which to file his comment with supporting evidence.
i. NO.
Extradition Request
The Extradition Request (Sec. 4. PD 1069) is made by the Foreign Diplomat of the
Requesting State, addressed to the Secretary of Foreign Affairs. The Secretary of Foreign
Affairs has the executive authority to conduct the evaluation process which, just like the
extradition proceedings proper, belongs to a class by itself or is sui generis. It is not a
criminal investigation but it is also erroneous to say that it is purely an exercise of ministerial
functions. At such stage, the executive authority has the power:
1) to make a technical assessment of the completeness and sufficiency of the extradition
papers in form and substance
2) to outrightly deny the request if on its face and on the face of the supporting documents
the crimes indicated are not extraditable
3) to make a determination whether or not the request is politically motivated, or that the
offense is a military one which is not punishable under non-military penal legislation.
The process may be characterized as an investigative or inquisitorial process (NOT an
exercise of an administrative body's quasi-judicial power) (Sec. 5. PD 1069 and Pars. 2 and
3, Art. 7 of the RP-US Extradition Treaty) that is indispensable to prosecution. The power of
investigation consists in gathering, organizing and analyzing evidence, which is a useful aid
or tool in an administrative agency's performance of its rule-making or quasi-judicial
functions.
In Ruperto v. Torres, the Court laid down the test of determining whether an administrative
body is exercising judicial functions or merely investigatory functions applies to an
administrative body authorized to evaluate extradition documents. If the only purpose for
investigation is to evaluate evidence submitted before it based on the facts and
circumstances presented to it, and if the agency is not authorized to make a final
pronouncement affecting the parties, then there is an absence of judicial discretion and
judgment. Thus, the role of the administrative body is limited to an initial finding of whether or
not the extradition petition can be filed in court. The court has the power to determine

16
whether or not the extradition should be effected. The evaluation procedure (in contrast to
ordinary investigations) may result in the deprivation of liberty of the prospective extraditee or
accused (Sec. 2[c] of PD 1069) at 2 stages:
1) provisional arrest of the prospective extraditee pending the submission of the request
This is because the Treaty provides that in case of urgency, a contracting party may request
the provisional arrest of the person sought pending presentation of the request (Par. 1, Art. 9
of the RP-US Extradition Treaty) to prevent flight but he shall be automatically discharged
after 60 days (Par. 4 of the RP-US Extradition Treaty) or 20 days (Sec. 20[d] PD 1069) if no
request is submitted. Otherwise, he can be continuously detained, or if not, subsequently
rearrested (Par. 5, Art 9, RP-US Extradition Treaty)
2) temporary arrest of the prospective extraditee during the pendency of the extradition
petition in court (Sec. 6, PD 1069).
The peculiarity and deviant characteristic of the evaluation procedure is that:
1) there is yet no extradite; BUT
2) it results in an administrative if adverse to the person involved, may cause his immediate
incarceration
The evaluation process partakes of the nature of a criminal investigation. Similar to the
evaluation stage of extradition proceedings, a preliminary investigation, which may result in
the filing of an information against the respondent, can possibly lead to his arrest, and to the
deprivation of his liberty. The characterization of a treaty in Wright was in reference to the
applicability of the prohibition against an ex post facto law. It had nothing to do with the denial
of the right to notice, information, and hearing.
In this case, the extradition request was delivered to the Department of Foreign Affairs on
June 17, 1999 (the following day the Department of Justice received the request). Thus, the
Department of Foreign Affairs failed to discharge its duty of evaluating the same and its
accompanying documents.
Extradition Petition
After delivery of the Extradition Request by the Secretary of Foreign Affairs to the
Secretary of Justice, the latter shall designate and authorize an attorney in his office to take
charge of the case (Par. 1, Sec. 5, PD 1069). The attorney shall file a written Extradition
Petition with the proper regional trial court, with a prayer that the court take the extradition
request under consideration (Par. 2, Sec. 5, PD 1069). The presiding judge shall issue an
order summoning the prospective extraditee to appear and to answer the petition. The judge
may issue a warrant of arrest if it appears that the immediate arrest and temporary detention
of the accused will best serve the ends of justice or to prevent flight (Par. 1, Sec. 6, PD
1069).
Extradition Hearing
The provisions of the Rules of Court, insofar as practicable and not inconsistent with the
summary nature of the proceedings, shall apply during the Extradition Hearing (Par. 1, Sec.
9, PD 1069) The attorney may represent the Requesting state. (Sec. 8, PD 1069). The
Court’s decision on whether the petition is extraditable based on the application of the dual
criminality rule and other conditions mentioned in Article 2 of the RP-US Extradition Treaty or
whether or not the offense for which extradition is requested is a political one (Par. 3, Article
7 of the RP-US Extradition Treaty) shall be final and immediately executory (Sec. 12, PD
1069) and appealable with the Court of Appeals where the provisions of the Rules of Court
governing appeal in criminal cases in the Court of Appeals shall apply except for the required
15-day period to file brief (Sec. 13, PD 1069).
ii. YES.

17
Neither the Treaty nor the Extradition Law precludes the twin rights of notice and hearing
from a prospective extradite. In the absence of a law or principle of law, we must apply the
rules of fair play. Petitioner contends that United States requested the Philippine
Government to prevent unauthorized disclosure of confidential information. Such argument,
however has been overturned by petitioner's revelation that everything it refuses to make
available at this stage would be obtainable during trial. If the information is truly confidential,
the veil of secrecy cannot be lifted at any stage of the extradition proceedings. The
constitutional issue in the case at bar does not even call for "justice outside legality," since
private respondent's due process rights, although not guaranteed by statute or by treaty, are
protected by constitutional guarantees.
However in this case, with the meticulous nature of the evaluation, which cannot just be
completed in an abbreviated period of time due to its intricacies and certain problems in the
extradition papers (such as those that are in Spanish and without the official English
translation, and those that are not properly authenticated) it cannot to be said to be urgent.
Therefore, notice and hearing requirements of administrative due process cannot be
dispensed with and shelved aside.
iii. NO.
During the evaluation procedure, no official governmental action of our own government has
as yet been done; hence the invocation of the right is premature. Later, and in contrast,
records of the extradition hearing would already fall under matters of public concern, because
our government by then shall have already made an official decision to grant the extradition
request.
3. WHAT IS PASSIVE PERSONALITY PRINCIPLE?
The Harvard Research in International law describes this principle of jurisdiction with respect
to crimes as “jurisdiction over offences committed against a [a State’s] nationals by
whomsoever committed.”[iv]
This principle authorizes states to assert jurisdiction over offences committed against their
citizens abroad. It recognizes the safety of its citizens when they journey outside national
boundaries.[v]The passive personality principle asserts that a state may apply particularly
criminal law to an act committed outside its territory by a person not its national where the
victim of the act was its national. The principle has not been generally accepted for ordinary
torts or crimes, but it is increasingly accepted as applied to terrorist or other organized
attacks on a state’s diplomatic representatives or other officials.[vi]
Under the passive personality (or victim) theory, a State has prescriptive jurisdiction over
anyone anywhere who injures its nationals. Jurisdiction is based on the nationality of the
victim. The United States however does not recognize this theory[vii] generally- despite its
recitation in certain cases- and there is a doubt whether more than handful of other States
actually accepts it as a valid principle of customary international law[viii].
Although many international legal scholars that the principle is the most controversial of the
five sources of jurisdiction, they also agree that international community recognizes its
legitimacy. Most accept that extra- territorial reach of a law premised upon the…. principle
would not be in doubt as a matter of international law.”[ix]
4. Objective Territoriality
The principle of territoriality is one of the well-established bases of jurisdiction in international
criminal law. The principle is absolute where an alleged crime takes place within the territory
of a single state. But, the dilemma starts when the commission of a crime commences in the
territory of one state but ends in the territory of another state. In this context, there arise two
dimensions of the principle of territoriality i.e. subjective territoriality (where the commission of
the crime commenced, not completed) and the objective territoriality (where the crime was
completed, but did not start).

18
The recent 'Request' of the Prosecutor of the International Criminal Court (ICC) on the ruling
over the jurisdiction of Rohingya situation raised a strong assertion on whether the ICC may
exercise its jurisdiction over the crime of deportation. Being commenced in Myanmar-a non-
State party to the Rome Statute, the issue ultimately reached the territory of Bangladesh-a
State Party. The Prosecutor's reliance on the objective territoriality in the case requires
further confirmation from the Pre-Trail Chamber I of the ICC on June 20, 2018.
5. Hartford Fire Insurance Co. v. California
Brief Fact Summary. An action under the Sherman Act against Hartford (D) was filed by the
California (P) on the ground that Hartford Fire Insurance Co. (D) and other London-based
reinsurers (D) had allegedly engaged in unlawful conspiracies to affect the market for
insurance in the United States, but the reinsurers (D) sought to dismiss this allegation under
the principle of international comity.
Synopsis of Rule of Law. Jurisdiction may be exercised over foreign conduct since no conflict
exists in a situation where a person subject to regulation by two states can comply with the
laws of both.
POINTS OF LAW - Legal Principles in this Case for Law Students.
Lauritzen set forth several factors which, alone or in combination, are generally conceded to
influence choice of law to govern a tort claim, particularly a maritime tort claim.
View Full Point of Law
point of law
Facts. An action against Hartford Fire Insurance Co. (D) and other London-based reinsurers
(D) was filed by California (P) on the premise that they had engaged in unlawful conspiracies
to affect the market for insurance in the United States and that their conduct in fact produced
substantial effect, thus violating the Sherman Act. In Hartford (D) view and argument, the
district court should have declined to exercise jurisdiction under the principle of international
comity. The court of appeals agreed that courts should look to that principle in deciding
whether to exercise jurisdiction under the Sherman Act but that other factors, including
Hartford’s (D) express purpose to affect U.S. commerce and the substantial nature of the
effect produced, outweighed the supposed conflict, requiring the exercise of jurisdiction in
this case. Hartford (D) appealed.
Issue. May jurisdiction be exercised over foreign conduct since no exist in a situation where a
person subject to regulation by two states can comply with the laws both?
Held. (souter, J.) Yes. Jurisdiction may be exercised over foreign conduct since no conflict
exists in a situation where a person subject to regulation by two states can comply with the
laws of both. The Sherman Act is applicable to foreign conduct meant to produce and in fact
produce some substantial effect in the United States. Even assuming that a court may
decline to exercise Sherman Act jurisdiction over foreign conduct, international comity would
not prevent a U.S. court from exercising jurisdiction in the circumstances alleged here. Since
there is no irreconcilable conflict between domestic and British law, the reinsurers (D) may
not invoke comity. Affirmed.
6. Republic v Manalo
Manalo married Minoro (Japanese) in the Philippines.
2011, Manalo filed a case for divorce in Japan. It was approved.
2012, Manalo filed a petition for cancellation of Entry of marriage in the Civil Registry by
virtue of a judgment of divorce Japanese court.
RTC denied Manalo’s petition for lack of merit. It ruled that that the divorce obtained by
Manalo in Japan should not be recognized, based on Article 15 of the New Civil Code.

19
It said that the Philippine law “does not afford Filipinos the right to file for a divorce
whether they are in the country or living abroad, if they are married to Filipinos or to
foreigners, or if they celebrated their marriage in the Philippines or in another country”
and that unless Filipinos “are naturalized as citizens of another country, Philippine laws
shall have control over issues related to Filipinos’ family rights and duties, together with
the determination of their condition and legal capacity to enter into contracts and civil
relations, including marriages.”
CA overturned the RTC decision. It held that Article 26 of the FC is applicable even if it
was Manalo who filed for divorce against her Japanese husband because the decree
may obtained makes the latter no longer married to the former, capacitating him to
remarry.
meaning of the law should be based on the intent of the lawmakers and in view of the
legislative intent behind Article 26, it would be height of injustice to consider Manalo as
still married to the Japanese national, who, in turn, is no longer married to her. For the
appellate court, the fact that it was Manalo who filed the divorce case is inconsequential.
Cited as similar to this case was Van Dorn v. Judge Romilo, Jr. where the mariage
between a foreigner an a Filipino was dissolved filed abroad by the latter.
SG filed a motion for reconsideration, but it was denied; hence, this petition.
ISSUE: WON CA erred in ruling that Manalo’s petition should be granted by virtue of Art.
26 (Par 2), FC?
HELD: NO. CA did not err in ruling that Manalo’s petition should be granted by virtue of
Art. 26 (Par 2), FC?
Manalo’s petition is granted.
CA ruling partially affirm.
A Filipino citizen has the capacity to remarry under Philippine law after initiating a divorce
proceeding abroad and obtaining a favorable judgment against his or her alien spouse
who is capacitated to remarry.
Dacasin v. Dacasin and Van Dorn
When this Court recognized a foreign divorce decree that was initiated and obtained by
the Filipino spouse and extended its legal effects on the issues of child custody and
property relation, it should not stop short in a likewise acknowledging that one of the
usual and necessary consequences of absolute divorce is the right to remarry. Indeed,
there is no longer a mutual obligation to live together and observe fidelity. When the
marriage tie is severed and ceased to exist, the civil status and the domestic relation of
the former spouses change as both of them are freed from the marital bond.

20