Bar Q and A #49

Assuming that Epsilon and Beta are parties to the UNCLOS, the controversy maybe resolved as follows:

Under the UNCLOS, warships enjoy a right of innocent passage. It appearing that the portion of Epsilon's territorial sea in question is a strait used for international navigation, Epsilon has no right under international law to suspend the right of innocent passage. Article 45(2) of the UNCLOS is clear in providing that there shall be no suspension of innocent passage through straits used for international navigation.

On the assumption that the straits in question is not used for international navigation, still the suspension of innocent passage by Epsilon cannot be effective because suspension is required under international law to be duly published before it can take effect. There being no publication prior to the suspension of innocent passage by Beta's warship, Epsilon's act acquires no validity.

Moreover, Epsilon's suspension of innocent passage may not be valid for the reason that there is no showing that it is essential for the protection of its security. The actuation of Beta's warship in resorting to delayed passage is for cause recognized by the UNCLOS as excusable, i.e., for the purpose of rendering assistance to persons or ship in distress, as provided in Article 18(2) of the UNCLOS. Hence, Beta's warship complied with the international law norms on right of innocent passage.

The claim of innocent passage is not meritorious. While the vessel has the right of innocent passage, it should not commit a violation of any international convention. The vessel did not merely navigate through the territorial sea, it also dragged red corals in violation of the international convention which protected the red corals. This is prejudicial to the good order of the Philippines (Article 19(2) of the Convention on the Law of the Sea).

Territorial sea is an adjacent belt of sea with a breadth of twelve nautical miles measured from the baselines of a state and over which the state has sovereignty (Articles 2 and 3 of the Convention 336on the Law of the Sea). Ship of all states enjoy the right of innocent passage through the territorial sea (Article 14 of the Convention on the Law of the Sea).

Under Section 1, Article I of the 1987 Constitution, the internal waters of the Philippines consist of the waters around, between and connecting the islands of the Philippine Archipelago, regardless of their breadth and dimensions, including the waters in bays, rivers and lakes. No right of innocent passage for foreign vessels exists in the case of internal waters (Harris, Cases and Materials on International Law, 5th ed., 1998). Internal waters are the waters on the landward side of baselines from which the breadth of the territorial sea is calculated (Brownlie, Principles of Public International Law, 4th ed., 1990).

Under the provisions of UNCLOS III:
a. The territorial waters of an archipelagic state shall extend up to 12 nautical miles from its baselines over which the State exercises jurisdictional control.

b. Its contiguous zone shall extend up to 24 nautical miles over which the State exercises control as is necessary to prevent infringement of its customs, fiscal, immigration, or sanitary laws within its territory.

c. Its exclusive economic zone shall extend up to
200 nautical miles from its baselines over which the State exercises sovereignty over all the exploration, exploitation, or conservation and managing of the economic natural resources, whether living or non-living.

d. Its continental shelf “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.’

NO, the President cannot authorize the Bureau of Fisheries to enter into a memorandum of agreement allowing Thai fishermen to fish within the exclusive economic zone of the Philippines, because the Constitution reserves to Filipino citizens the use and enjoyment of the exclusive economic zone of the Philippines.

The exclusive economic zone under the Convention on the Law of the Sea is an area beyond and adjacent to the territorial sea, which shall not extend beyond 200 nautical miles from the baselines from which the territorial sea is measured. The coastal State has in the exclusive economic zone:

a. Sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, if the waters superjacent to the sea-bed and of the seabed and subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;
b. Jurisdiction as provided in the relevant provisions of the Convention with regard to:
i. the establishment and use of artificial islands, installations and structures;
ii. marine scientific research;
iii. and the protection and preservation of the marine environment;
c. Other rights and duties provided for in the Convention (Article 56 of the Convention of the Law of the Sea.)

CONTIGUOUS ZONE is a zone contiguous to the territorial sea and extends up to twelve nautical miles from the territorial sea and over which the coastal state may exercise control necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea. (Article 33 of the Convention on the Law of the Sea)

The EXCLUSIVE ECONOMIC ZONE is a zone extending up to 200 nautical miles from the baselines of a state over which the coastal state has sovereign rights for the purpose of exploring and exploiting,  conserving and managing the natural resources, whether living or nonliving, of the waters superjacent to the seabed and of the seabed and subsoil, and with regard to other activities for the economic exploitation and exploration of the zone. (Articles 56 and 57 of the Convention on the Law of the Sea)

In the EXCLUSIVE ECONOMIC ZONE, the coastal State has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds in an area not extending  more than 200 nautical miles beyond the baseline from which the territorial sea is measured. Other rights include the production of energy from the water, currents and winds, the establishment and use of artificial islands, installations and structures, marine scientific research and the  protection  and preservation of the marine environment. (Art. 56, U.N. Convention on the Law of the Sea)