U.K. v.
Norway, ICJ Report 1951, supra the Royal Norwegian decree of the 12th July 1935 is not contrary
Doctrine:
ICJ accepted that Norway could draw straight baselines between
fixed points on the mainland and on islands or rocks where the
coast ‘is deeply indented and cut into’ or where there is a fringe of
islands along the coast in its immediate vicinity
Facts:
Since 1911 British trawlers had been seized and condemned for
violating measures taken by the Norwegian Government specifying
the limits within which fishing was prohibited to foreigners. In 1935,
a Decree was adopted establishing the lines of delimitation of the
Norwegian fisheries zone.
Under customary law, no ships should enter 10 nautical miles from
the baseline of Norway and normally the baseline is the low-
watermark which is the shoreline at low tide. Norway, however,
was a bit different just off the coast running up and down the coast
where a series of hundreds of rocky outcrops like little islands in a
geographic sense though these were really connected to the
mainland. Norway for hundreds of years had counted these rocky
outcrops as part of its mainland territory.
The United Kingdom argued:
That Norway could draw straight lines only across bays;
That straight lines, regardless of their length, could be used
subject to the following conditions set out in point 5 of its
Conclusion;
"Norway is entitled to claim as Norwegian internal waters, on
historic grounds, all fjords and sunds which fall within the
conception of a bay as defined in international law ... whether the
proper closing line of the indentation is more or less than 10-
nautical miles long". (Basing itself by analogy on the so-called rule
of 10 miles relating to bays, the United Kingdom maintained that
the length of the baselines drawn across the waters lying between
the various formations of the skjaergaard must not exceed 10
miles.);
That 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
That the Norwegian system of delimitation was unknown to the
United Kingdom and that the system therefore lacked the essential
notoriety to provide the basis of an historic title enforceable upon,
or opposable to, the United Kingdom.
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.
Issue/s:
Whether or not the coastal line delimited by Norway which is
correct.
Ruling:
The judgment was rendered in favor of Norway. The court held that
the method employed in the delimitation of the fisheries zone by
to international law.
The court found that Norway had used the rocky outcrops as its
baseline for centuries and that other nations including Great Britain
had allowed them to do so. The court said, historical data
produced by the Norwegian government lends some weight to the
idea of the survival of traditional rights over fishing grounds. Such
rights founded on the vital need of the population and attested by
very ancient and peaceful usage may legitimately be taken into
account in drawing a line whichever appears to the court to have
been kept within the bounds of what is moderate and reasonable.
Norway was therefore allowed in accordance with customary
international law to calculate its territorial waters from the edge of
the rock outcrops.
Magallona, et. al. v. Ermita, et.al., G.R. No. 187167, 16 Aug 2011.
Doctrine:
The enactment of UNCLOS III compliant baselines law for the
Philippine archipelago and adjacent areas, as embodied in RA
9522, allows an internationally-recognized delimitation of the
breadth of the Philippines’ maritime zones and continental shelf.
RA 9522 is therefore a most vital step on the part of the Philippines
in safeguarding its maritime zones, consistent with the Constitution
and our national interest.
Facts:
In 1961, Congress passed Republic Act No. 3046 (RA 3046)
demarcating the maritime baselines of the Philippines as an
archipelagic State. This law followed the framing of the Convention
on the Territorial Sea and the Contiguous Zone in 1958 (UNCLOS
I), codifying, among others, the sovereign right of States parties
over their "territorial sea," the breadth of which, however, was left
undetermined.
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), which
the Philippines ratified on 27 February 1984.
Among others, UNCLOS III prescribes the water-land ratio, length,
and contour of baselines of archipelagic States like the Philippines.
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 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, embodying
the terms of the Treaty of Paris and ancillary treaties, 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.
Issue/s:
WON RA 9522 is unconstitutional.
Ruling:
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 and continental shelves that UNCLOS
III delimits. UNCLOS III was the culmination of decades-long
negotiations among United Nations members to codify norms
regulating the conduct of States in the world’s oceans and
submarine areas, recognizing coastal and archipelagic States’
graduated authority over a limited span of waters and submarine
lands along their coasts.
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. Article 48
of UNCLOS III on archipelagic States like ours could not be any
clearer:
Article 48. Measurement of the breadth of the territorial sea, the
contiguous zone, the exclusive economic zone and the continental
shelf. – The breadth of the territorial sea, the contiguous zone, the
exclusive economic zone and the continental shelf shall be
measured from archipelagic baselines drawn in accordance with
article 47.
Thus, 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).
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.
As their final argument against the validity of RA 9522, petitioners
contend that the law unconstitutionally "converts" internal waters
into archipelagic waters, hence subjecting these waters to the right
of innocent and sea lanes passage under UNCLOS III, including
overflight. Petitioners extrapolate that these passage rights
indubitably expose Philippine internal waters to nuclear and
maritime pollution hazards, in violation of the Constitution.
The fact that for archipelagic States, their archipelagic waters are
subject to both the right of innocent passage and sea lanes
passage 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. 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.
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.
Absent an UNCLOS III compliant baselines law, an archipelagic
State like the Philippines will find itself devoid of internationally
acceptable baselines from where the breadth of its maritime zones
and continental shelf is measured. This is recipe for a two-fronted
disaster: first, it sends an open invitation to the seafaring powers to
freely enter and exploit the resources in the waters and submarine
areas around our archipelago; and second, it weakens the
country’s case in any international dispute over Philippine maritime
space. These are consequences Congress wisely avoided.
The enactment of UNCLOS III compliant baselines law for the
Philippine archipelago and adjacent areas, as embodied in RA
9522, allows an internationally-recognized delimitation of the
breadth of the Philippines’ maritime zones and continental shelf.
RA 9522 is therefore a most vital step on the part of the Philippines
in safeguarding its maritime zones, consistent with the Constitution
and our national interest.
France v. Turkey (SS Lotus Case), supra.
Facts:
A collision occurred shortly before midnight on the 2nd of August
1926 between the French (P) mail steamer Lotus and the Turkish
(D) collier Boz-Kourt. The French mail steamer was captained by a
French citizen by the name Demons while the Turkish collier Boz-
Kourt was captained by Hassan Bey. The Turks lost eight men
after their ship cut into two and sank as a result of the collision.
Although the Lotus did all it could do within its power to help the
ship wrecked persons, it continued on its course to Constantinople,
where it arrived on August 3. On the 5th of August, Lieutenant
Demons was asked by the Turkish (D) authority to go ashore to
give evidence. After Demons was examined, he was placed under
arrest without informing the French (P) Consul-General and
Hassan Bey. Demons were convicted by the Turkish (D) courts for
negligence conduct in allowing the accident to occur.
This basis was contended by Demons on the ground that the court
lacked jurisdiction over him. With this, both countries agreed to
submit to the Permanent Court of International Justice, the
question of whether the exercise of Turkish (D) criminal jurisdiction
over Demons for an incident that occurred on the high seas
contravened international law.
Issue/s:
Does a rule of international law which prohibits a state from
exercising criminal jurisdiction over a foreign national who commits
acts outside of the state’s national jurisdiction exist?
Ruling:
No. A rule of international law, which prohibits a state from
exercising criminal jurisdiction over a foreign national who commits
acts outside of the state’s national jurisdiction, does not exist.
Failing the existence of a permissive rule to the contrary is the first
and foremost restriction imposed by international law on a state
and it may not exercise its power in any form in the territory of
another state.
This does not imply that international law prohibits a state from
exercising jurisdiction in its own territory, in respect of any case
that relates to acts that have taken place abroad which it cannot
rely on some permissive rule of international law. In this situation, it
is impossible to hold that there is a rule of international law that
prohibits Turkey (D) from prosecuting Demons because he was
aboard a French ship. This stems from the fact that the effects of
the alleged offense occurred on a Turkish vessel.
Hence, both states here may exercise concurrent jurisdiction over
this matter because there is no rule of international law in regards
to collision cases to the effect that criminal proceedings are
exclusively within the jurisdiction of the state whose flag is flown.
Germany v. Denmark; Germany v. Netherlands, supra.
Facts:
This is a delimitation case of the Northern Continental shelf
between the 3 countries. The Netherlands and Denmark asserted
that they must determine the boundaries in the continental shelf
using the equidistance principle wherein median or the line
connecting points which are located at equal distance from both
coastal states, under the 1958 Geneva Convention but Germany
contended that the convention should not apply to them since they
were not a signatory of the treaty. Germany asserted that the
proper way to delimit the continental shelf is where all states
concerned must have just and equitable share of the available
continental shelf. Furthermore, Germany claimed that if the
equidistant rule was to be held applicable in this case, they argued
that the concave shape of the German coastline warranted an
exception from it.
Issue/s:
Whether or not the use of the principle “just and equitable share”
in the delimitation of the North Sea Continental Shelf as Germany?
Whether or not Germany’s claim in making the country’s concave
coastline be an exception from the application of the Equidistant
principle in the delimitation of the continental shelf prosper?.
Ruling: The ICJ ruled in the negative to both of Germany’s claims.
The ICJ stated that the task assigned to them when the concerned
state forwarded was to delimit the North Sea Continental Shelf or
to set boundaries between concerned states and not to apportion
the area of the continental shelf. Furthermore, according to the
ICJ, the doctrine of “just and equitable share” was wholly at
variance with the most fundamental of all the rules of law relating
to the continental shelf, namely, that the rights of the coastal state
in respect of the area of the continental shelf constituting a natural
prolongation of its land territory under the sea existed ipso facto
and ab initio, by virtue of its sovereignty over land. That the right
was inherent. In order to exercise it, no special legal acts had to be
performed. It followed that the notion of apportioning as as yet
undelimited are considered as a whole was inconsistent with the
basic concept of continental shelf entitlement
On the other hand, the equidistance principle embedded in the
1958 Geneva Convention states that
Philippines v. China (In the Matter of the South China Sea
Arbitration), 12 Jul 2016, PCA No. 2013-19.
Facts:
On January 22, 2013, the Republic of the Philippines instituted
arbitral proceedings against the People's Republic of China.
Philippines and China are both parties to United Nations, thus the
dispute settlement procedure was based on Annex VII of the 1982
United Nations Convention on the Law of the Sea (UNCLOS).
Moreover, as implied in Article 287 of UNCLOS, it is prescribed
that the arbitration be handled by the Permanent Court of
Arbitration (PCA) given that China adopted a position of non-
acceptance and non-participation in the proceedings and no
settlement is achieved between the parties.
Despite China’s absence from the actual proceedings, Article 9 of
Annex VII of UNCLOS supports that the proceedings shall not be
barred. The Philippines raised a total of 15 submissions which can
be categorized into main issues concerning about historic rights
and the source of maritime entitlements in the South China Sea,
the status of certain maritime features in the South China Sea, and
the lawfulness of certain actions by China in the South China Sea
that the Philippines alleged to be in violation of the Convention.
Proceedings commenced on January 21, 2013 and issuance of
final award (decision) was released on July 11, 2016.
Issue/s:
WON China’s claims based on any “historic rights” to waters,
seabed, and subsoil within the “nine-dash line” are contrary to
UNCLOS and invalid. (YES)
WON the Spratly Islands generates Exclusive Economic Zone
which in turn may cause overlap between Philippines and China’s
EEZ giving the latter possible entitlement. (NO)
WON China has interfered with and violated the Philippines’
exercise of sovereign rights over living and non-living resources
within the latter’s EEZ and continental shelf. (YES)
WON the demeanor of China’s law enforcement vessels at
Scarborough Shoal violated UNCLOS and endangered Philippine
vessels and personnel and created a serious risk of collision.
(YES)
Ruling:
YES. UNCLOS “comprehensively” governs the parties’ (PH and
CH) respective rights to maritime areas in the South China Sea.
Therefore, to the extent China’s nine-dash line is a claim of
“historic rights” to the waters of the South China Sea, it is invalid.
The Tribunal established that the Convention supersedes any *Gaven Reef and McKennan Reef (including Hughes Reef) are
treaties in force before its coming into force. It questioned China’s LTEs that generate no maritime entitlements, but may be used to
claim to historical rights in the region, and established that China’s determine baselines to measure territorial sea. – NO. Both Gaven
state practice does not show that China had been enjoying any and McKennan Reef are above water at high tide; they are rocks
historical rights in the South China Sea rather, it was enjoying the that generate territorial seas but no EEZ or continental shelf.
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. Whatever historic rights China may have had were
extinguished when UNCLOS was adopted, to the extent those
rights were incompatible with UNCLOS.

NO. None of the features in the Spratly Islands generates an EEZ,

nor can the Spratly Islands generate an EEZ collectively as a unit.
As such, the Tribunal declared certain areas are within the
Philippines’ EEZ and not overlapped by any possible Chinese
entitlement. 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 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.

YES. The Tribunal finds that China had breached Articles 7 and 56
of 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. China
violated the Philippines’ sovereign rights in its EEZ. It did so by
interfering with Philippine fishing and hydrocarbon exploration;
constructing artificial islands; and failing to prevent Chinese
fishermen from fishing in the Philippines’ EEZ. China also
interfered with Philippine fishermen’s traditional fishing rights near
Scarborough Shoal. China’s construction of artificial islands at
seven features in the Spratly Islands, as well as illegal fishing and
harvesting by Chinese nationals, violate UNCLOS obligations to
protect the marine environment. Finally, Chinese law enforcement
vessels unlawfully created a serious risk of collision by physically
obstructing Philippine vessels at Scarborough Shoal in 2012.

YES. 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. Chinese law enforcement
vessels violated maritime safety obligations by creating a serious
risk of collision on two occasions in April and May 2012 during the
Scarborough Shoal standoff. The Tribunal also added that China
had breached its obligations under the Convention on the
International Regulations for Preventing Collisions at Sea, 1972
(COLREGS).

Fallo:

The Unanimous Award of the Permanent Court of Arbitration ruled

affirmative on the Republic of the Philippines’ disputes (excluding
certain submissions*).