Bar Q and A #2

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The objection of Congressman Pat Rio Tek does not hold water. UNCLOS does not define the internal and territorial waters of states but merely "prescribes the water-land ratio, length, and contour of baselines of archipelagic States like the Philippines. Whether referred to as Philippine internal waters or as archipelagic waters under UNCLOS, 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.

By the term “archipelagic doctrine of national territory” is meant that the islands and waters of the Philippine Archipelago are unified in sovereignty, together with “all the territories over which the Philippines has sovereignty or jurisdiction.”

This archipelagic doctrine, so described under Article 1 of the Constitution, draws its rationale from the status of the whole archipelago in sovereignty by which under Part IV of the UNCLOS the Philippines is defined as an Archipelagic State in Article 46, thus:

  1. archipelagic state” means a State constituted wholly by one or more archipelagos and may include other islands;

  2. archipelago”  means   a   group   of   islands including  parts       of             islands interconnecting   waters   and   other   natural features which are so closely interrelated that such islands waters and other natural features form  an  intrinsic  geographic,  economic  and political  entity,  or  which  historically  have been regarded as such.

As an archipelagic state, the national territory is implemented by drawing its “straight archipelagic baselines” pursuant to Art. 47 of the UNCLOS which prescribes among its main elements, as follows:

  1. By “joining the outermost points of the outermost islands and drying reefs of the archipelago”, including the main islands and an area in which the ration of the area of the water to the land, including atolls, is between 1 to 1 and 9 to 1.

  2. Mainly, the length of such baselines “shall not exceed 100 nautical miles…”

  3. “The drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago.”

This line of argument 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):

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

  2. Bajo de  Masinloc, also known as Scarborough Shoal.

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.

Hence, far from surrendering the Philippines claim over the KIG and the Scarborough Shoal, Congress’ decision to classify the KIG and the Scarborough Shoal as Regime[s] of Islands under the Republic of the Philippines consistent with Article 121 of UNCLOS III manifests the Philippine States responsible observance of its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III, any naturally formed area of land, surrounded by water, which is above water at high tide, such as portions of the KIG, qualifies under the category of regime of islands, whose islands generate their own applicable maritime zone (Magallona v. Ermita, 655 SCRA 476).

The phrase that waiver of immunity by the State does not mean a concession of liability means that by consenting to be sued, the State does not necessarily admit it is liable. As stated in Philippine Rock Industries, Inc. v. Board of Liquidators, 180 SCRA 171, in such a case the State is merely giving the plaintiff a chance to prove that the State is liable but the State retains the right to raise all lawful defenses.

a.) STATE IMMUNITY FROM SUIT means that the State cannot be sued without its A corollary of such principle is that properties used by the State in the performance of its governmental functions cannot be subject to judicial execution.

b.) Consent of the State to be sued may be made expressly as in the case of a specific, express provision of law as waiver of State immunity from suit is not inferred lightly (e.g. A. 327 as amended by PD 1445) or impliedly as when the State engages in proprietary functions (U.S. v. Ruiz, U.S. v. Guinto) or when it files a suit in which case the adverse party may file a counterclaim (Froilan v. Pan Oriental Shipping) or when the doctrine would in effect be used to perpetuate an injustice (Amigable v. Cuenca, 43 SCRA 360).

As held in Philippine Virginia Tobacco Administration v. Court of Industrial Relations, 65 SCRA 416, the Philippine Tobacco Administration is not liable for overtime pay, since it is performing governmental functions. Among its purposes are to promote  the  effective  merchandising  of  tobacco  so that those engaged in the tobacco industry will have economic security, to stabilize the price of tobacco, and to improve the living and economic conditions of those engaged in the tobacco industry.

The claim of diplomatic immunity of YZ is not tenable,    because he does not possess an acknowledged diplomatic title and is not performing duties of a diplomatic nature.

However, the suit against him is a suit against XX without its consent. YZ was acting as an agent of XX and was performing his official functions when he conducted surveillance on drug exporters and informed the local police officers who arrested MBC. He was performing such duties with the consent of the Philippine government,therefore, the suit against YZ is a suit against XX without its consent. (Minucher v. CA,397 SCRA 244, 1992)

a.) As counsel of Baker, I shall argue that Baker has no diplomatic immunity, because he is not performing diplomatic functions.

b.) As counsel of Adams, I shall argue that since he was acting within his assigned functions with the consent of the Philippines, the suit against him is a suit against the United States without its consent and is barred by state immunity from (Minucher v. CA, 397 SCRA244, 2003)

As counsel of Abad, I shall argue that the contract is not a sovereign function and that the stipulation that any suit arising under the contract shall be filed with the proper courts of the City of Manila is a waiver of the sovereign immunity from suit of Italy. I shall also argue that the ambassador does not enjoy diplomatic immunity, because the suit relates to a commercial activity.

The court should reject the defenses. Since the establishment of a diplomatic mission requires the maintenance and upkeep of the embassy and the residence of the ambassador, Italy was acting in pursuit of a sovereign activity when it entered into the contract. The provision in the contract regarding the venue of lawsuits is not necessarily a waiver of sovereign immunity from suit. It should be interpreted to apply only where Italy elects to sue in the Philippine courts or waives its immunity by a subsequent act. The contract does not involve a commercial activity of the ambassador, because it is connected with his official functions. (Republic of Indonesia v. Vinzon, 405 SCRA 126, 2003)