Island of Palmas Case vs. UN
Report of Int. Arb. Awards, 231; Apr 4, 1928
FACTS:
Palmas (also referred to as Miangas) is an island about two miles long by three fourths of a mile wide which at the time of this case had a population of about 750 and was of little strategic or economic value. It sits about halfway between the islands of Mindanao in the Philippines and Nanusa in the Netherlands Indies. It is, however, within the boundaries of the Philippines as defined by Spain and thus ceded to the United States in 1898. In 1906 an American General, Leonard Wood, visited Palmas and discovered that the Netherlands also claimed sovereignty over the island.
An agreement was signed on January 23, 1925, between the United States and the Netherlands to submit the dispute to binding arbitration. The Swiss jurist, Max Huber, was the selected arbitrator acting for the Permanent Court of Arbitration.
Both the United States (P) laid claim to the ownership of the Island of Palmas. While the U.S. (P) maintained that it was part of the Philippines, the Netherlands (D) claimed it as their own. The claim of the U.S. (P) was back up with the fact that the islands had been ceded by Spain by the Treaty of Paris in 1898, and as successor to the rights of Spain over the Philippines, it based its claim of title in the first place on discovery. On the part of the Netherlands (D), they claimed to have possessed and exercised rights of sovereignty over the island from 1677 or earlier to the present.
ISSUE: Does US have sovereignty over the Las Palmas Islands.
RULING: No. Spain could not transfer more rights than she herself possessed. Thus, the US cannot claim sovereignty. 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. Titles of acquisition of territorial sovereignty in present- day international law are either based on: (a) an act of effective apprehension, such as occupation or conquest; (b) cession which presuppose that the ceding and the cessionary Power or at least one of them, have the faculty of effectively disposing of the ceded territory. (c) natural accretion can only be conceived of as an accretion to a portion of territory where there exists an actual sovereignty capable of extending to a spot which falls within its sphere of activity.
First, Spain was silent on the matter. Second, Spain nor the US did not provide evidence of exercising actual sovereignty. If we consider as positive law at the period in question the rule that discovery as such, i.e., the mere fact of seeing 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. If Spain had been exercising sovereignty then there should be evidence of conflict between Spain and the Netherlands. In any case, it is conclusive that Spain may have had title to the island upon discovery, but it failed to maintain it as it did not exercise its authority.
Clipperton Island Case
26 AJIL; 1932
FACTS:
Clipperton Island, an uninhabited island coral atoll in the eastern Pacific Ocean, southwest of Mexico, west of Costa Rica, and northwest of Galapagos Islands, Ecuador, is claimed to have been occupied by the French. Mexico also claimed that Spain discovered it and that it was its successor due to the activities undertaken therein as early as 1848-1849. In 1858, Emperor Napoleon III annexed it as part of the French colony of Tahiti but there were no apparent acts of sovereignty thereafter. The island also remained without population. In 1909, Mexico and France signed a compromise, agreeing to submit the dispute regarding sovereignty over Clipperton Island to binding arbitration by King Emanuel of Italy.
ISSUE: Does France have sovereignty over Clipperton Island?
RULING: YES. Besides the animus occupandi, the actual, and not the nominal, taking of possession is a necessary condition of occupation. The taking of possession consists in the act or series of acts by which the occupying state reduces to its possession the territory in question and takes steps to exercise exclusive authority there. Strictly speaking, and in ordinary cases, that only takes place when the state establishes in the territory itself an organization capable of making its laws respected. This, however, is but a means of procedure to the taking of possession and therefore is not identical with the latter. There may be cases where it is unnecessary to have recourse to this method. Thus, if a territory, by virtue of the fact that it was completely uninhabited, is, from the first moment when the occupying state makes its appearance there, at the absolute and undisputed disposition of that state, from that moment the taking of possession must be considered as accomplished, and the occupation is thereby completed. There is no reason to suppose that France has subsequently lost her right by derelictio, since she never had the animus of abandoning the island, and the fact that she has not exercised her authority there in a positive manner does not imply the forfeiture of an acquisition already perfected.
Magallona v Ermita
G.R. No. 187167; July 16, 2011
FACTS:
In 1961, RA 3046 was passed which provides among others the demarcation lines of the baselines of the Philippines as an archipelago. This is in consonance with UNCLOS I. RA 5446 amended RA 3046 in terms of typographical errors and included Section 2 in which the government reserved the drawing of baselines in Sabah in North Borneo.
In March 2009, Congress amended RA 3046 by enacting RA 9522. 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 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 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 states 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. In addition, petitioners contend that RA 9522s treatment of the KIG as regime of islands not only results in the loss of a large maritime area but also prejudices the livelihood of subsistence fishermen.
ISSUE: Is RA 9522 unconstitutional?
RULING: NO. First, RA 9522 did not delineate the territory of the Philippines but is merely a statutory tool to demarcate the country’s maritime zone and continental shelf under UNCLOS III. The Court emphasized that UNCLOS III is not a mode of acquiring or losing a territory as provided under the laws of nations. UNCLOS III is a multi-lateral treaty that is a result of a long-time negotiation to establish a uniform sea-use rights over maritime zones and continental shelves. In order to measure said distances, it is a must for the state parties to have their archipelagic doctrines measured in accordance to the treaty. RA 9522, by optimizing the location of base points, increased the Philippines total maritime space of 145,216 square nautical miles. Second, the classification of KGI and Scarborough Shoal as Regime of Islands is consistent with the Philippines’ sovereignty. Had RA 9522 enclosed the islands as part of the archipelago, the country will be violating UNCLOS III since it categorically stated that the length of the baseline shall not exceed 125 nautical miles. So, the classification is in accordance with the Philippines sovereignty and State’s responsible observance of its pacta sunt servanda obligation under UNCLOS III. Third, the new base line introduced by RA 9522 is without prejudice with 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. And lastly, the UNCLOS III and RA 9522 are not incompatible with the Constitution’s delineation of internal waters. Petitioners contend that RA 9522 transformed the internal waters of the Philippines to archipelagic waters hence subjecting these waters to the right of innocent and sea lanes passages, exposing the Philippine internal waters to nuclear and maritime pollution hazards. The Court emphasized that 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, regardless whether internal or archipelagic waters. However, sovereignty will not bar the Philippines to comply with its obligation in maintaining freedom of navigation and the generally accepted principles of international law. It can be either passed by legislature as a municipal law or in the absence thereof, it is deemed incorporated in the Philippines law since the right of innocent passage is a customary international law, thus automatically incorporated thereto. This does not mean that the states are placed in a lesser footing; it just signifies concession of archipelagic states in exchange for their right to claim all waters inside the baseline. 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. 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.
Fisheries Case
ICJ Reports 116; 1951
FACTS:
Since 1911, British trawlers had been seized and condemned for having violated measures taken by the Norwegian Government specifying the limits within which fishing was prohibited to foreigners. In 1935, a decree was enacted delimiting the Norwegian fisheries zone. The decree covers the drawing of straight lines, called “baselines” 4 miles deep into the sea. This 4-mile area is reserved fishing exclusive for Norwegian nationals. On September 28th, 1949, the Government of the United Kingdom filed with the Registry an Application instituting proceedings before the Court against Norway, the subject of the proceedings being the validity or otherwise, under international law, of the lines of delimitation of the Norwegian fisheries zone laid down by the Royal Decree of July 12th, 1935. The Application referred to the Declarations by which the United Kingdom and Norway had accepted the compulsory jurisdiction of the Court in accordance with Article 36, paragraph 2, of the Statute. The UK Government contended that 1) Norway could only draw straight lines across bays; 2) that the length of the baselines drawn across the waters lying between the formations of the skjaergaard must not exceed 10 miles; 3) 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 4) that the Norwegian system of delimitation was unknown to UK and that the system lacked essential notoriety to provide the basis of historical title enforceable upon the UK. On the other hand, 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: Is 1935 Decree concerning the delimitation of the Norwegian fisheries valid under the international law of the lines of delimitation?
RULING: YES. The ICJ ruled that the method employed for the delimitation of the fisheries zone by the Royal Norwegian Decree of 1935 is valid and not contrary to international law. The judgment of the court first examined the applicability of the principles put forward by the government of the UK, then the Norwegian system, and finally the conformity of that system with international law. The first principle put forward by the UK is that the baselines must be low water mark, this indeed is the criterion generally adopted by most states and but differ as to its application. The court considered the methods of drawing the lines but, the court rejected the “trace Parallele” which consists of drawing the outer limits of the belt following the coast and all its sinuosity. The court also rejected the “courbe tangente” (arcs of a circle) and it is not obligatory under international law to use these methods of drawing the lines. The court also paid particular attention to the geographical aspect of the case. The geographical realities and historic control of the Norwegian coast inevitably contributed to the final decision by the ICJ. The coast of Norway is too indented and is an exception under international law from the 3 miles territorial waters rule. The fjords, Sunds along the coastline which have the characteristic of a bay or legal straits should be considered Norwegian for historical reasons that the territorial sea should be measured from the line of low water mark. So it was agreed on the outset of both parties and the court that Norway had the right to claim a 4 mile belt of territorial sea. The court concluded that it was the outer line of the Skaergaard that must be taken into account in admitting the belt of the Norwegian territorial waters.
The law relied upon mainly international Law of the sea; how far a state can modify its territorial waters and its control over it, exclusively reserving fishing for its nationals. In this case, rules that are practiced for instance how long a baseline should be. Only a 10 mile long straight line is allowed and this has been the practice by most states however it is different in the case of Norway because of Norway's geographic indentation, islands and islets and that Norway always opposed any attempt to apply it to its coast.
The Court established the existence and the constituent elements of the Norwegian system of delimitation, further finds that this system was consistently applied by Norwegian authorities and that it encountered no opposition on the part of other States. It was also stated that the lines drawn were in accordance with the traditional Norwegian system and moreover, pointed out that they were a result of a careful study initiated by Norwegian authorities as far back as 1911.
In the matter of the South China Sea Arbitration
P.C.A. 2013-19; Oct 29, 2015
FACTS:
The Philippines initiated arbitration proceedings against China seeking the declaration that the Parties’ respective rights and obligations with regard to the waters, seabed and maritime features of the South China Sea are governed by UNCLOS, and that China’s claims based on its “nine dash line” are inconsistent with the Convention and therefore invalid. Throughout the proceedings, China has rejected and returned correspondence from the Tribunal sent by the Registry, explaining on each occasion its position that it does not accept the arbitration initiated by the Philippines.
ISSUE/S: Are China’s claims based on its “nine dash line” valid?
RULING: NO. As between the Philippines and China, the UNCLOS defines the scope of entitlements in the South China Sea, which may not extend beyond the limits imposed therein. China’s claims to historic rights, or other sovereign rights or jurisdiction are contrary to the UNCLOS and without lawful effect to the extent that they exceed the geographic and substantive limits of China’s maritime entitlements under the UNCLOS. Within the meaning of Art. 121(1) of the UNCLOS (Regime of islands), naturally formed areas of land, surrounded by water, which are above water at high tide, However, under Art. 121(3) of the UNCLOS, the high-tide features at Scarborough Shoal are rocks that cannot sustain human habitation or economic life of their own and accordingly shall have no EEZ or continental shelf. Both parties are obliged to comply with the Convention regarding the resolution of disputes, and to respect the rights and freedoms of other States under the UNCLOS.
Alleged Interference with the Philippines' Sovereign Rights in the EEZ and Continental Shelf
China has, through the operation of its marine surveillance vessels, breached Art. 77 of the UNCLOS (Rights of the coastal State over the continental shelf) with respect to the Philippines’ sovereign rights over the non-living resources of its continental shelf in the area of Reed Bank. The Tribunal further finds that China has, by promulgating its 2012 moratorium on fishing in the South China Sea (including areas falling within the EEZ of the Philippines), breached Art. 56 of the UNCLOS (Rights, jurisdiction and duties of the coastal State in the EEZ) with respect to the Philippines’ sovereign rights over the living resources of its EEZ.
Alleged Failure to Prevent Chinese Nationals from Exploring the Philippines’ Living Resources
China has, through the operation of its marine surveillance vessels at Mischief Reef and Second Thomas Shoal in May 2013, failed to exhibit due regard for the Philippines’ sovereign rights with respect to fisheries in its EEZ. Accordingly, China has breached its obligations under Art. 58(3) of the UNCLOS (Rights and duties of other States in the EEZ.
China’s Actions in respect of Traditional Fishing at Scarborough Shoal
China has, through the operation of its official vessels at Scarborough Shoal from May 2012 onwards, unlawfully prevented Filipino fishermen from engaging in traditional fishing at Scarborough Shoal.
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