ISLAND OF PALMAS CASE FACTS: The origin of the dispute is to be found in the visit paid to the Island of Palmas

(Miangas) by General Leonard Wood, who was then Governor of the Province of Moro. This visit led to the statement that the Island of Palmas, undoubtedly included in the archipelago known as the Philippine Islands, as delimited by Art. 3 of the Treaty of Peace between US and Spain, and cede in virtue of the said article to the US, was considered by the Netherlands as forming part of the territory of their possession in the East Indies. The Arbitrators remarks: Sovereignty in relation to a portion of the surface of the globe is the legal condition necessary for the inclusion of such portion in the territory of any particular State, this is called territorial sovereignty. Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State. Territorial sovereignty is, in general, a situation recognized and delimited in space, either by so-called natural frontiers as recognized by international law or by outward signs of delimitation that are undisputed, or else by legal engagements entered into between interested neighbors, such as frontier conventions, or by acts of recognition of States within fixed boundaries. If a dispute arises as to the sovereignty over a portion of territory, it is customary to examine which of the States claiming sovereignty possesses a titlecession, conquest, occupation, etc.superior to that which the other State might possibly bring forward against it. If the contestation is based on the fact that the other Part has actually displayed sovereignty, it cannot be sufficient to establish the title by which territorial sovereignty was validly acquired at a certain moment; it must also be shown that the territorial sovereignty has continued to exist and did exists at the moment which for the decision of the dispute must be considered as critical actual display of State activities. Titles of acquisition of territorial sovereignty in present-day international law are either based on the act of effective apprehension, such as occupation or conquest, or, like cession, presupposes that the ceding and the cessionary Powers or at least one of them, have the faculty of effectively disposing of the ceded territory. The fact of peaceful and continuous display is still one of the most important considerations in establishing boundaries between States and is as good as a title. Territorial sovereignty 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. In International law, the structure of which is not based on any super-State organization, cannot be presumed to reduce a right such as territorial sovereignty, with which almost all international relations are bound up, to the category of an abstract right, without concrete manifestations. While municipal law is able to recognize abstract rights of property as existing apart from any material display of them. ISSUE: w/n a title is valid erga omnes where no conventional line of sufficient topographical precision exists or if there are gaps in the frontiers otherwise established The title alleged by the US as constituting the immediate foundation of its claim is that of cession, brought about by the Treaty of Paris, which cession transferred all rights of sovereignty which Spain may have possessed in the region indicated in Art. 3 of the said Treaty. HELD: The effects of discovery by Spain are to be determined by the rules of international law in force in the first half of the 16th century. If we are to consider as positive law at the period in question the rule that discovery as such, mere fact of seeing the 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, the moment of conclusion and coming into force of the Treaty of Paris. Discovery alone, without any subsequent act, cannot at the present time suffice to prove sovereignty over the Island of Palmas; and in so far as there is no sovereignty, the question of an abandonment properly speaking of sovereignty by one State n order that the sovereignty of another may take its place does not arise. An inchoate title of discovery must be completed within a reasonable period by the effective occupation of the region claimed to be discovered. This principle must be applied in the present case, for the reasons given with regard to the rules determining which of successive legal systems is to be applied (the socalled intertemporal law). An inchoate title could not prevail over the continuous and peaceful display of authority by another State; for such display may prevail even over a prior, definitive title put forward by another State.

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Title arising out of contiguityislands relatively close to their shores belonged to them in virtue of their geographical situationit is impossible to show the existence of a rule of positive international law to the effect that islands situated outside territorial waters should belong to a State from the mere fact that its territory forms the terra firma (nearest continent or island of considerable size). The principle of contiguity, in regard to islands, may not be out of place when it is a question of allotting them to one State rather than another, either by agreement between the Parties, or by a decision not necessarily based on law; but as a rule establishing ipso jure the presumption of sovereignty in favor of a particular State, this principle would be in conflict with what has been said as to territorial sovereignty and as to the necessary relation between the right to exclude other States from a region and the duty to display therein the activities of a State. US based their claim on the titles of discovery, of recognition by treaty and of contiguity but they have not established the fact that sovereignty so acquired was effectively displayed at any time. Netherlands, on the contrary, found their claim to sovereignty essentially on the title of peaceful and continues display of State authority over the island. Since this title in international law would prevail over a title of acquisition of sovereignty not followed by actual display of State authority, it is necessary to ascertain in the first place, whether the contention of Netherlands is sufficiently established by evidence, and if so, for what period of time. In the opinion of the Arbitrator, the Netherlands have succeeded in establishing the following facts: 1. Island of Palmas is identical with an island which has formed successively a part of 2 of the native States of the Island of Sangi 2. These native States were from 1677 onwards connected with the East India Company, and thereby with the Netherlands, by contracts of suzerainty The acts of indirect or direct display of Netherlands sovereignty at Palmas are not numerous and there are considerable gaps in the evidence of continuous display. However, it may suffice that such display existed in 1898 and had already existed as continuous and peaceful before that date long enough to enable any Power to have, according to local conditions, a reasonable possibility for ascertaining the existence of a state of things contrary to her real or alleged rights. It is not necessary that the display of sovereignty should be established at having begun at a precise epoch; it suffices that it had existed at the critical period preceding the year 1898.

SUMMARY: The title of discovery, if it had not been already disposed of by the Treaties of Munster and Utrecht would, under the most favorable and most extensive interpretation, exist only as an inchoate title, as a claim to establish sovereignty by effective occupation. An inchoate title however cannot prevail over a definite title founded on continuous and peaceful display of sovereignty. The title of contiguity has no foundation in international law. Also, title of recognition by treaty does not apply. 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. LEGAL STATUS OF EASTERN GREENLAND FACTS: The Norwegian government published a proclamation declaring that it had proceeded to occupy certain territories in Eastern Greenland. The Danish government contended that Eastern Greenland was subject to the sovereignty of Denmark and on those grounds brought before the Permanent Court of International Justice a suit against Norway. The battle of Leipzig led to the triumph of the Allied cause and the Swedish army compelled Denmark to sign the Peace Treaty of Kiel, the 4th Art. of which provided for the cession to Sweden of the Kingdom of Norway, excluding however Greenland, the Faeroe Isles and Iceland. At the end of 1814, the necessary steps were taken with a view to the complete liquidation of all matters arising out of the Union between Denmark and Norway. After protracted negotiations, this liquidation was effected by a Convention signed at Stockholm. 2 necessary dates: (1) in 1822, the Scottish whaler Scoresby made the first landing by a European in the territory covered by the Norwegian declaration of occupation; (2) about 1900, thanks to the voyages of the American Peary, the insular character of Greenland was established. It is admitted by Norway that from the time of Scoresbys landing the East coast forms part of the known portion of Greenland. In the summer of 1930, the Norwegian government conferred police powers on certain Norwegian nationals for the inspection of the Norwegian hunting stations in Eastern Greenland. Denmark became uneasy at this action, and intimated to the Norwegian government, at first verbally, and afterwards in writing, that she could not countenance the granting of regular police powers to Norwegian nationals in territories situated in Greenland, seeing that these territories were, in the Danish view, subject to Danish sovereignty.

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Norwegian government replied that, in accordance with the standpoint which it had reserved in its note, Eastern Greenland constituted a terra nullius, and that it was fully entitled to invest Norwegian nationals in this territory with police powers in respect of Norwegian nationals and other persons domiciled in Norway and that the area lay outside the limits of the Danish colonies in Greenland and the Danish sovereignty extended no further than the limits of these territories. Danish submits in the written pleading that the Norwegian occupation of 1931 is invalid, founded upon the contention that the area occupied was at the time of the occupation subject to Danish sovereignty; that the area is part of Greenland, and at the time of the occupation, Danish sovereignty existed over all Greenland. HELD: The Danish claim is not founded upon any particular act of occupation but alleges a title founded on the peaceful and continuous display of State authority over the island. It must be born in mind that as the critical date is July 10, 1931, it is not necessary that sovereignty over Greenland should have existed throughout the period during which the Danish government maintains that it was in being. A claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involves 2 elements each of which must be shown to exist: 1. Intention and will to act as sovereign 2. Some actual exercise or display of such authority Another circumstance which must be taken into account upon a claim to sovereignty over a particular territory is the extent to which the sovereignty is also claimed by some other Power. One of the peculiar features of the present case is that up to 1931, there was no claim by any power other than Denmark to the sovereignty over Greenland. Indeed, no Power disputed the Danish claim to sovereignty. The Kings pretensions to sovereignty which existed at the time of the foundation of the colonies are sufficient to demonstrate the intention, and these were not limited to any particular part of the country. Legislation is one of the most obvious forms of the exercise of sovereign power. In 1925, legislation was enacted regulating the hunting and fishing, and in the same year, Greenland was divided into 2 provinces b law which declared that all commercial activity was reserved to the Danish State. The conclusion to which the Court is led is that, bearing in mind the absence of any claim to sovereignty by another Power, and the Arctic and inaccessible character of the uncolonized parts of the country, the authority of the King of

Demark, to an extent, sufficient to give his country a valid claim to sovereignty and that rights over Greenland were not limited to the colonized area. WESTERN SAHARA CASE ISSUE: Was Western Sahara a territory belonging to no one (terra nullius)? HELD: The expression terra nullius was a legal terms of art employed in connection with occupation as one of the accepted legal methods of acquiring sovereignty over territory. Occupationoriginal means of peaceably acquiring sovereignty over territory otherwise than by cession or succession. The State practice of the relevant period indicates that territories inhabited by tribes or peoples having a social and political organization were not regarded as terra nullius. It shows that in the case of such territories, the acquisition of sovereignty was not generally considered as effected unilaterally through occupation of terra nullius by original title but through agreements concluded with local rules. Western Sahara was inhabited by peoples which, if nomadic, were socially and politically organized in tribes and under chiefs competent to represent them. Spain did not proceed on the basis that it was establishing its sovereignty over terrae nullius. In its Royal Order, far from treating the case as one of occupation of terra nullius, Spain proclaimed that the King was taking the Rio de Oro under his protection on the basis of agreements which had been entered into with the chiefs of the local tribes. SABAH Sabah is situated in the northern part of the island of Borneo. It is bounded by Brunei and Sarawak to the west and by Indonesian Kalimantan to the south. The Territory originally owed allegiance to the Sultan of Brunei, but in 174, the land of the Kimanis river was ceded to the Sultan of Sulu in return for the latters help in a succession dispute in Brunei. The latter leased it to Overbeck and Dent, together with their heirs, associates, successors and assigns. Dent established the Chartered Company of British North Borneo to manage the territory, which was placed under British protection. In a case filed with Justice Macaskie of the High Court of Borneo, the court ruled that it is abundantly clear that the successors in sovereignty of the Sultan of Sulu are the Government of the Philippine Islands.

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The Chartered Company surrendered its right to the British Government, and Sabah became a British Crown Colony. A few days after the Philippines regained independence from US, North Borneo was annexed to the British dominion and was called Colony of Borneo. As a response to this cession, the Macapagal Resolution 1950 called on the Government to initiate formal institution of the claim over Sabah. Another resolution came after where Philippines pressed its claim stressing that the sovereignty over the Territory had remained vested in the Sultanate of Sulu. The occupation of the territory first by Overbeck and Dent and later by the British North Company had been occupation by lessee or an administrator, not occupation by an owner or sovereign. When talks were held in London between Philippines and UK, Sabah became a constituent part of the Federation of Malaysia upon the latters formation on Sept. 16, 1963. This was challenged by both Indonesia and Philippines, however, only the Philippines claim was maintained. President Marcos, at the opening of the second meeting of the ASEAN Heads of Government, declared that the Philippines is taking definite steps to eliminate of the burdens of ASEANthe Philippine claim to Sabah. The 1987 Philippine Constitution omitted from the definition of the National Territory the phrase and all other territories belonging to the Philippines by historic right or legal title, which was widely construed as referring to the Philippine claim to Sabah. In 1993, active cooperation on Mindanao and Sabah are being pursued by both countries, Philippines and Malaysia, through the Brunei Darussalam-IndonesiaMalaysia-Philippines East ASEAN Growth Area and bilateral programs, such as cooperation on border crossing and patrol and assistance to Muslim Filipinos and to Filipinos in Malaysia, more particularly in Sabah. THE SOUTH CHINA SEA DISPUTETHE SPRATLYS GEOGRAPHICAL SETTING Surrounded by 10 littoral states: China, Taiwan, Philippines, Indonesia, Brunei, Malaysia, Singapore, Thailand, Kampuchea, and Vietnam. The South China Sea Proper constitutes 4 archipelagoes: Pratas, Macclesfield Bank, Paracels, and Spratlys. The Paracels, a group of islands on the South-East of China are claimed by China and Vietnam. Some 100 miles to the south of Paracels are a group of islands called Spratlys. Some of these are occupied by the Philippines, Vietnam, Taiwan and China.

Nothing had been positively initiated to prevent unnecessary conflict until Indonesia, a non-claimant state, with the support of the Canadian International Development Agency, convened the first workshop on Managing Potential Conflicts in the South of China Sea in Bali. Upon the suggestion of the Philippine participants, the next workshop was held in Bandung attended by representatives from China, Taiwan and Vietnam. A proposal was made by Indonesia with the support of the Philippines that an INSTITUTIONAL MECHANISM be organized on an unofficial status through which all issues can be ventilated periodically. Each claimant State was given opportunity to state the legal basis of their territorial claims in the area. On the 3rd workshop, the proposal of setting up an institutional mechanism again failed to get unanimous support. It was during this that the Chinese participants were confronted by Vietnamese participants on a law enacted by China declaring its territorial waters and contiguous zones which eventually claimed sovereignty over all the islands, waters, seabed and airspace stretching the 12 nautical miles from the coast of all the islands on the South China Sea. Vietnam also challenged the legality of the agreement granting Crestone, a US oil company, to explore oil and gas in the area that is claimed by Vietnam as part of its continental shelf. ASEAN issued a Declaration that the disputes in the South China Sea must be settled by peaceful means. CLAIM OF CHINA As early as the 2nd Century BC, Chinese discoveries were claimed of the Xisha and Nansha islands. After WWI, China was the only claimant of the Spratlys. The Chinese claimed sovereignty over the Spratlys since the 13th century through expeditions sent by the Yuan Government in 1293. However, China admits that there is no actual occupation and control of the totally uninhabited islands. The Xisha and Nansha islands are very far away from the Mainland. Only on Feb. 25, 1992, when the 7th National Peoples Republic of China passed a law enclosing the Nansha Islands within its territorial sea. CLAIM OF TAIWAN Since Taiwan claims to represent the sovereignty of the whole of China, participants from Taiwan asserted that Nansha, referring to the Spratlys, Xisha to Paracels, Chungsha Islands to Macclesfield Bank, and Tungshu Islands are intergrated parts of the China by history and tradition. CLAIM OF VIETNAM The Claim of Vietnam to the Paracels is primarily based on the state succession relying on the dissolution of the French sovereignty in Indochina and on historical grounds.
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In 1959 and later years, Vietnam continued to assert sovereignty over the Paraccels seizing fishing vessels of China in the area. It incorporated the Paracels and Spratlys into the Qua Nas province in 1973. PHILIPPINE CLAIM After gaining independence from the US in 1946, the Philippines asserted its claim to the Spratlys before the UN General Assembly, which was reiterated in 1950. In 1956, Tomas Cloma, a Filipino navigator claim ownership by discovery and occupation of the territory identified as Freedom Land on the Spratlys. A diplomatic note was sent by the Philippine Government to Taipeh demanding the withdrawal of a Chinese garrison on the island of Itu Aba on the ground that Philippines has a legal title of the island. Tomas Cloma irrevocable ceded and conveyed in favor of the Philippines all rights and interests over said islands. Consequently, the President issued a Presidential Decree declaring that the area is, by reason of effective occupation and control, part of the continental margin of the Philippine Archipelago, and does not belong to any other State. Filipinos have domiciled peacefully on the islands which led to a viable Filipino political, social and economic community known as Kalayaan Island Group. Such Decree was duly registered with the UN Secretariat with an accompanying map and technical description of the area. The main legal basis is that the Kalayaan Island Group is terra nullius followed by occupation and exercise of jurisdiction. CLAIM OF MALAYSIA The Malaysian participants did not make any statement on their claim, however, in 1979, Malaysia published a map claiming the southern part of South China Sea. The area claimed by Malaysia overlapped the southern portion of the Kalayaan Island Group. It was on this area that the 49 Filipino fishermen were apprehended by Malaysian authorities in 1988. CLAIM OF BRUNEI Only recently, Brunei laid claim to the Louisa Reef, a territory which had been occupied by elements of the Malaysian Special Forces. VALUE AND IMPORTANCE OF THE ISLANDS ON THE SOUTH CHINA SEA 1. Presumed Huge Oil Deposit 2. Navigational and Communication Routes

SUGGESTED FOREIGN POLICY OPTIONS 1. to pursue the Philippine claim by diplomatic negotiation through the ASEAN 2. to follow the initiative taken by Indonesia with cooperation and support of CIDA in the Workshops on Managing Potential Conflicts in the South China Sea held in Indonesia 3. to organize an International Authority similar to the Treaty of the Antarctic To strengthen the claim, archipelagic baselines should be drawn to include the Kalayaan Island Group. Under the UN Convention on the Law of the Sea (Art. 49), an archipelagic state has sovereignty and jurisdiction over all lands and waters regardless of their depths or distances. The sovereignty also extends to the airspace over the archipelagic waters as well as to their sea bed and subsoil and the resources contained therein. Among all the claimant-states, the Philippines is the nearest in point of distance from the Spratlys it has occupied as res nullius. Due to very irregular geography and pattern of occupation by the claimants, it is impossible to resolve the problem by linear settlements and direct allocation of the areas. A cooperative scheme can be a realistic solution similar to the Treaty of the Antarctic where an institutionalization of a cooperative regime had defused conflicts. A delimitarized zone to evolve peace and cooperative development can be achieved with the freezing of territorial claims. Confidence-building measures can be achieved through an agreement to: 1. freeze all territorial claims 2. renounce the use of force and commit themselves to settle all disputes only by peaceful means 3. cooperate in the regime of the Spratlys International Authority 4. delink the Spratlys dispute from the other issues There are 2 factors that will have to be considered in the last 2 options: 1. the rigid position that China has taken due to the recent law it enacted 2. the difficulty that the Philippines will have to overcome under Art. 12[2] Art. 12[2] provides that the State shall protect the nations marine wealth in its archipelagic waters, territorial sea, and the exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. Since Kalayaan Island Group is considered as part of the Philippine territory may not legally enter into joint development of the KIG, as joint development implies joint ownership. One possible option is to enter into joint ventures with other states for exploitation of minerals.

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PHILIPPINE OPTIONS TO RESOLVE THE CHINESE EXPANSION IN THE SPRATLYS 1. Military option is out of the question 2. Through regional arrangements under the ASEAN initiative 3. Philippines may also bring the matter to the attention of the UN Security Council o Difficulty with this is that the Security Council usually does not act unless the situation actually endangers international peace and security of the nations under Chapter 7 of the UN Charter o Assuming that the Security Council decides to take the case, China can exercise its veto power 4. File the case in the International Court of Justice o The creeping invasion of China involves the international responsibility of a State and is also a question of international law which are justiciable questions within the jurisdiction of ICJ o The problem with ICJ is that both parties must agree to submit the case to the Court 5. Bring the matter to an arbitration body upon agreement by both states 6. Bring the case to the International Tribunal of the Law of the Seamost feasible optionChina manifested its willingness to settle the issue applying the provisions of the UN Convention on the Law of the Sea STATE CONTROL OF AIRSPACE OVER THE TERRITORIAL SEA AND THE CONTIGUOUS ZONE At the beginning of the 20th century, the world was faced with a choice between 2 conflicting theories: 1. Freedom of the air 2. National sovereignty over the air On Oct. 13, 1919, 27 nations at a meeting in Paris signed the Paris Convention where they accepted the doctrine of national sovereignty over the airspace where every power has complete and exclusive sovereignty over the air space above its territory and the latter includes national territory and the territorial waters adjacent thereto. 25 years later, the same principle was affirmed by signing the Chicago Convention 1944. Professor John Cobb Cooper recommends the use of the term flight space, which if it were adopted, would allow states to control so much of universal space above and beyond the surface of the earth as is now used or may hereafter be used as the area in which flight takes place. The territorial waters make up the territorial sphere of validity of a state, where one state to the exclusion of the other states can carry out its coercive acts. They include the maritime belt and inland waters.

FISHERIES CASE (ICJ REP 116) FACTS: The Fisheries Case was brought before the Court by the United Kingdom of Great Britain and Northern Ireland against Norway. By a Decree, the Norwegian Government had, in the northern part of the country (north of the Arctic Circle) delimited the zone in which the fisheries were reserved to its own nationals. UK asked the Court to state whether this delimitation was or was not contrary to international law. In its judgment, the Court found that neither the method employed for the delimitation by the Decree, nor the lines themselves fixed by the said Decree, are contrary to international law. The coastal zone concerned in the dispute is of a distinctive configuration. Its length as the crow flies exceeds 1,500 kilometres. Mountainous along its whole length, very broken by fjords and bays, dotted with countless islands, islets and reefs (certain of which form a continuous archipelago known as the skjaergaard, "rock rampart"), the coast does not constitute, as it does in practically all other countries in the world a clear dividing line between land and sea. The land configuration stretches out into the sea and what really constitutes the Norwegian coastline is the outer line of the land formations viewed as a whole. Along the coastal zone are situated shallow banks which are very rich in fish. These have been exploited from time immemorial by the inhabitants of the mainland and of the islands: they derive their livelihood essentially from such fishing. In past centuries British fisherman had made incursions in the waters near the Norwegian coast. As a result of complaints from the King of Norway, they abstained from doing so at the beginning of the 17th century and for 300 years. But in 1906 British vessels appeared again. These were trawlers equipped with improved and powerful gear. The local population became perturbed, and measures were taken by Norway with a view to specifying the limits within which fishing was prohibited to foreigners. Incidents occurred became more and more frequent, and on July 1935 the Norwegian Government delimited the Norwegian fisheries zone by Decree. Negotiations had been entered into by the 2 Governments; they were pursued after the Decree was enacted, but without success. A considerable number of British trawlers were arrested and condemned. It was then that the UK Government instituted proceedings before the Court. ISSUES and HELD: 1. w/n the lines laid down by the 1935 Decree for the purpose of delimiting the Norwegian fisheries zone have been drawn in accordance with international law The breadth of the belt of Norwegian territorial sea is not an issue: the 4-mile limit claimed by Norway has been acknowledged by UK.

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UK denies that they have been drawn in accordance with international law, and it relies on principles which it regards as applicable to the present case. For its part, Norway, whilst not denying that rules do exist, contends that those put forward by the UK are not applicable; and it further relies on its own system of delimitation which it asserts to be in every respect in conformity with international law. The first principle put forward by the UK is that the base-line must be lowwater mark. This indeed is the criterion generally adopted in the practice of States. The parties agree as to this criterion, but they differ as to its application. The geographic realities described above, which inevitably lead to the conclusion that the relevant line is not that of the mainland, but rather that of the "skjaergaard", also lead to the rejection of the requirement that the base-line should always follow low-water mark. Drawn between appropriate points on this low-water mark, departing from the physical coastline to a reasonable extent, the base-line can only be determined by means of a geometric construction. Straight lines will be drawn across well-defined bays, minor curvatures of the coastline, and sea areas separating islands, islets and reefs, thus giving a simpler form to the belt of territorial waters. The drawing of such lines does not constitute an exception to a rule: it is this rugged coast, viewed as a whole, that calls for the method of straight base-lines. 2. w/n there must be a maximum length for straight lines, as contended by UK, except in the case of the closing line of internal waters to which UK concedes that Norway has a historic title

Having examined the sectors thus criticized, the Judgment concludes that the lines drawn are justified. In one case-that of Svaerholthavet-what is involved is indeed a basin having the character of a bay although it is divided into two large fjords. In another case -that of Lopphavet-the divergence between the base-line and the land formations is not such that it is a distortion of the general direction of the Norwegian coast; furthermore, the Norwegian Government has relied upon a historic title clearly referable to the waters of Lopphavet: the exclusive privilege to fish and hunt whales granted in the 17th century to a Norwegian subject, from which it follows that these waters were regarded as falling exclusively within Norwegian sovereignty. In a third casethat of the Vestfjord-the difference is negligible: the settlement of such questions, which are local in character and of secondary importance, should be left to the coastal State. For these reasons, the Judgment concludes that the method employed by the Decree of 1935 is not contrary to international law; and that the base-lines fixed by the Decree are not contrary to international law either. THE CORFU CHANNEL CASE FACTS: On May 15, 1946, the British cruisers, Orion and Superb, while passing southward through the North Corfu Channel, were fired at by an Albanian battery in the vicinity of Sarandra. It appeared from the report of the commanding naval officer that the firing started when the ships had already passed the battery and were moving away from it. An Albanian note of May 21st states that the Coastal Commander ordered a few shots to be fired in the direction of the ships in accordance with a General Order founded on international law. On October 22, 1946, 2 British warships, Volage and Saunarez, cutside the Bay of Sarandra struck a mine and were heavily damaged. The court found as a fact that the mines had either been laid by Albania or that Albania had knowledge of their being laid. UK Government at once protested to the Albanian Government, stating that innocent passage through straits is a right recognized by international law. Albanian Government asserted that foreign warships and merchant vessels had no right to pass through Albanian territorial waters without prior notification to, and the permission of, Albanian authorities. ISSUE: w/n there UK violated Albanian sovereignty by sending warships through the Strait without having obtained the previous authorization of the Albanian Government
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Although certain States have adopted the 10-mile rule for the closing lines of bays, others have adopted a different length: consequently the 10-mile rule has not acquired the authority of a general rule of international law, neither in respect of bays nor the waters separating the islands of an archipelago. Furthermore, the 10-mile rule is inapplicable as against Norway inasmuch as she has always opposed its application to the Norwegian coast. Thus the Court, confining itself to the Conclusions of the UK, finds that the 1935 delimitation does not violate international law. But the delimitation of sea areas has always an international aspect since it interests States other than the coastal State; consequently, it cannot be dependent merely upon the will of the latter. In this connection certain basic considerations inherent in the nature of the territorial sea bring to light the following criteria which can provide guidance to Courts: since the territorial sea is closely dependent upon the land domain, the base-line must not depart to any appreciable extent from the general direction of the coast: certain waters are particularly closely linked to the land formations which divide or surround them (an idea which should be liberally applied in the present case, in view of the configuration of the coast); it may be necessary to have regard to certain economic interests peculiar to a region when their reality and importance are clearly evidenced by a long usage.

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HELD: In accordance with international custom, States in time of peace have a right to send their warships through straits used for international navigation between 2 parts of the high seas without the previous authorization of a coastal State, provided that the passage is innocent. Unless otherwise prescribed in an international convention, there is no right for a coastal State to prohibit such passage through straits in time of peace. The Albanian Government does not dispute that the North Corfu Channel is a strait in the geographical sense; but it denies that this Channel belongs to the class of international highways through which a right of passage exists, on the grounds that it is only of secondary importance and not even a necessary rout between 2 parts of the high seas, and that it is used almost exclusively for local traffic to and from the ports of Corfu and Saranda. The decisive criterion is its geographical situation, not the volume of the traffic, as connecting 2 parts of the high seas and the fact of its being used for international navigation. One fact of particular importance is that the North Corfu Channel constitutes a frontier between Albania and Greece, that a part of it is wholly within the territorial waters of these States, and that the Strait is of special importance to Greece by reason of the traffic to and from the port of Corfu. Hence, it is considered as belonging to the class of international highways through which passage cannot be prohibited by a coastal State in time of peace. NORTHWEST PASSAGE IN INTERNATIONAL LAW FACTS: There are 2 basic elements in the definition of an international strait: 1. a geographical elementany narrow natural passage between land connecting 2 seas or large bodies of water this is unsatisfactory from the legal point of view since it mentions no width and does not necessitate the overlap of territorial waters 2. a functional one Only Straits used for International Navigation will fall within the scope of the proposed Convention. The Convention is silent, however, as to the degree of use required. Eric Bruel, a Danish jurist, suggests that this question, degree of use required, ought to be determined after considering such factors as: a. number of ships pass through the strait b. total tonnage c. aggregate value of their cargos d. average size of the ship

e. whether they are distributed among a greater or small number of nation Only those straits that are of considerable importance to the international maritime commerce enjoy the peculiar legal position accorded to international straits. Internationalthe interest attached to the use of these straits is world wide. In 1949, the International Court pronounced in the North Corfu Channel case that the decisive criterion is, to be considered as an international strait, its geographical situation as connecting 2 parts of the high seas and the fact of its being used for international or commercial navigation. ISSUES and HELD: 1. w/n the Northwest Passage may be regarded as an international strait in international law Since the extension of Canadas territorial waters to 12 miles in 1970, there can be no doubt that the Northwest Passage constitutes a legal strait in that there is an overlap of territorial waters. (Geographical Element) The effect is that under any sensible view of the law, Barrow Strait and Prince of Wales Strait are subject to complete Canadian sovereignty. To put it simply, we have undisputed control over 2 of the gateways of the Northwest Passage. The only possible doubt which could remain as to whether or not the Northwest Passage constitutes a legal strait lies in the necessity of it joining 2 parts of the high seas. Baffin Bay is part of the high seas, but, occasionally, some doubt has been voiced as to whether the waters of the Beaufort Sea are high seas, because of the presence of ice. In spite of the presence of ice, navigation is taking place not only in the Beaufort Sea but is more and more possible in the Arctic Ocean itself. It is no longer possible to deny the Northwest Passage is a legal strait, connecting 2 parts of the high seas. There are only 18 completed transits made through the Northwest Passage routes so far. All 18 crossing listed were experimental in nature, 5 being by foreign ships but with Canadas acquiescence. By no stretch of the imagination could the dew foreign American crossings constitute sufficient use for commercial navigation to turn the Northwest Passage into an international strait. (Functional Element) Those who maintain that the Northwest Passage may be classified as an international strait obviously confuse actual use with potential use. The latter
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is the criterion used by American courts to determine whether a waterway is navigable or not. 2. w/n the Right of Innocent Passage is applicable to Northwest Passage

The right of passage is one which applies primarily and, in the traditional sense, exclusively, to the territorial sea. It is only since the 1958 Territorial Sea Convention that the newly enclosed internal waters of archipelagos are subject to the right of innocent passage. Considering that the right of innocent passage applies to territorial waters in general, a fortiori it applies to those territorial waters lying in the Northwest Passage and, therefore, the right of innocent passage in favor of foreign ships unquestionably applies. Under the Territorial Sea Convention, the coastal state may suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security. However, this right of suspension no longer applies when the strait is used for international navigation. Passage is innocent only so long as it is not prejudicial to the peace, good order or security of the Coastal State. Under the ICNT, the right of innocent passage would continue to apply in the Northwest Passage. An act of willful and serious pollution is now considered as being prejudicial to the peace, good order, or security of the Coastal State. When there are clear grounds for a coastal state to believe that a foreign ship has violated its anti-pollution laws during passage through its territorial sea, it may physically inspect and go so far as to arrest the ship. Coastal States have the right to establish and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution. These powers of the coastal State extend not only to the establishment of standards but also their enforcement. Insofar as the Northwest Passage is concerned, it would seem that, even if it becomes an international strait, the special provision on ice-covered areas would continue to apply. In spite of the special protection of the Northwest Passage in relation to pollution prevention and control, 2 limitations on the powers of the coastal state would still apply: 1. sovereign immunity for warshipsprovisions regarding pollution of marine environment shall not apply to any warship, naval auxiliary, other vessels or aircraft owner or operated by a State and used, for the time being, only on government, non-commercial service 2. mode or manner to exercise transit passage

MAGALLONA v. ERMITA FACTS: 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. Among others, UNCLOS III prescribes the water-land ratio, length, and contour of baselines of archipelagic States like the Philippines and sets the deadline for the filing of application for the extended continental shelf. 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 submit that RA 9522 dismembers a large portion of the national territory because it discards the pre-UNCLOS III demarcation of Philippine territory under the Treaty of Paris and related treaties, successively encoded in the definition of national territory under the 1935, 1973 and 1987 Constitutions. Petitioners theorize that this constitutional definition trumps any treaty or statutory provision denying the Philippines sovereign control over waters, beyond the territorial sea recognized at the time of the Treaty of Paris, that Spain supposedly ceded to the United States. Petitioners argue that from the Treaty of Paris technical description, Philippine sovereignty over territorial waters extends hundreds of nautical miles around the Philippine archipelago, embracing the rectangular area delineated in the Treaty of Paris. This is original action for the writs of certiorari and prohibition assails the constitutionality of RA 9522 adjusting the countrys archipelagic baselines and classifying the baseline regime of nearby territories. ISSUES and HELD: 1. w/n petitioners possess locus standi to bring this suit We recognize petitioners locus standi as citizens with constitutionally sufficient interest in the resolution of the merits of the case which undoubtedly raises issues of national significance necessitating urgent resolution. Indeed, owing to the peculiar nature of RA 9522, it is understandably difficult to find other litigants possessing a more direct and specific interest to bring the suit, thus satisfying one of the requirements for granting citizenship standing. 2. w/n RA 9522 is unconstitutional

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 UN members to codify norms regulating the conduct of States in the worlds oceans and submarine areas,
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Public International Law

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. 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. 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, not by executing multilateral treaties on the regulations of sea-use rights or enacting statutes to comply with the treatys 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. 3. w/n the use of UNCLOS IIIs regime of islands framework to draw the baselines, and to measure the breadth of the applicable maritime zones of the KIG, weakens our territorial claim over that area

Further, petitioners argument that the KIG now lies outside Philippine territory because the baselines that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. 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. Although the Philippines has consistently claimed sovereignty over the KIG and the Scarborough Shoal for several decades, these outlying areas are located at an appreciable distance from the nearest shoreline of the Philippine archipelago, 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. Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS IIIs limits. The need to shorten this baseline, and in addition, to optimize the location of basepoints using current maps, became imperative as discussed by respondents: The amendment of the baselines law was necessary to enable the Philippines to draw the outer limits of its maritime zones including the extended continental shelf in the manner provided by Article 47 of [UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446, the baselines suffer from some technical deficiencies. 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 Regimes of Islands under the Republic of the Philippines consistent with Article 12136 of UNCLOS III manifests the Philippine States responsible
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Under RA 3046, as under RA 9522, the KIG and the Scarborough Shoal lie outside of the baselines drawn around the Philippine archipelago. This undeniable cartographic fact takes the wind out of petitioners argument branding RA 9522 as a statutory renunciation of the Philippines claim over the KIG, assuming that baselines are relevant for this purpose. 4. w/n the KIGs (and Scarborough Shoals) exclusion from the Philippine archipelagic baselines results in the loss of about 15,000 square nautical miles of territorial waters, prejudicing the livelihood of subsistence fishermen

On the other hand, 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.

Public International Law

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. 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. 5. w/n 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

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. 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. 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. WHEREFORE, we DISMISS the petition.

Whether referred to as Philippine internal waters under Article I of the Constitution39 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. 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. Indeed, bills drawing nautical highways for sea lanes passage are now pending in Congress. 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 treatys limitations and conditions for their exercise. 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--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 was a concession by archipelagic States, in exchange for their right to claim all the

Public International Law

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