Midterm Contemporary World Law of the Sea PDF

LESSON: 9 LAW OF THE SEA **LAW OF THE SEA** is a body of international rules that binds states and other subjects of international law in their maritime affairs. Its functions are the spatial distribution of national jurisdiction and to ensure cooperation between states (Tanaka, 2012). THE LAW OF...

LESSON: 9 LAW OF THE SEA **LAW OF THE SEA** is a body of international rules that binds states and other subjects of international law in their maritime affairs. Its functions are the spatial distribution of national jurisdiction and to ensure cooperation between states (Tanaka, 2012). THE LAW OF THE SEA HAVE BEEN GOVERNED BY 3 PRINCIPLES **PRINCIPLE OF FREEDOM**: \- The principle of freedom aims to ensure the freedom of the various uses of the oceans. **PRINCIPLE OF SOVEREIGNTY**: \- The principle of sovereignty seeks to safeguard the interests of coastal states. **PRINCIPLE OF THE COMMON HERITAGE OF MANKIND**: \- The principle of the common heritage of mankind seeks to promote the common interest of all people in present and future generations. THIS LAW OF THE SEA HAS BEEN CODIFIED INTO FOUR: **The Hague Conference for the Codification of International Law (1930)**; \- The conference was held in The Hague, Netherlands, from March 13 to April 12, 1930. It was a significant international legal initiative led by the League of Nations to codify many aspects of international law. The conference attempted to bring clarity and uniformity to the legal principles that regulate state behavior, focusing on three main topics: Nationality Laws, Territorial Waters, and State Responsibility. **Law of the Sea, 1958 (UNCLOS I)** \- The First United Nations Conference on the Law of the Sea (UNCLOS I) was held in Geneva, Switzerland, in 1958. It was the first major attempt by the United Nations to codify and regulate international maritime laws. The primary goal of this conference was to establish a legal framework governing the rights and responsibilities of nations concerning the use of the world's oceans and seas. **Law of the Sea, 1960 (UNCLOS II)** \- The Second United Nations Conference on the Law of the Sea (UNCLOS II), held in Geneva from March 17 to April 26, 1960, was a follow-up to the First United Nations Conference on the Law of the Sea (UNCLOS I) of 1958. Its primary purpose was to address unresolved issues from UNCLOS I, particularly the breadth of territorial waters and fishing rights. **Law of the Sea, 1973-1982 (UNCLOS III).** \- The Third United Nations Conference on the Law of the Sea (UNCLOS III), held from 1973 to 1982, was a landmark international effort to develop a comprehensive legal framework governing the use of the world\'s oceans and seas. It culminated in the adoption of the United Nations Convention on the Law of the Sea (UNCLOS) in 1982, which remains the most important international agreement on maritime law to this day. BASELINE \- According to Tanaka (2012), a baseline is the line from which the outer limits of marine spaces under the national jurisdiction of the coastal state are measured. It is also the line distinguishing internal waters from the territorial sea. A vital feature of maritime law is the baseline, or the line from which the breadth of the territorial sea and other maritime zones is measured. **4 TYPES OF BASELINE** 1\. **NORMAL BASELINE** \- The normal baseline is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal state (Article 5, UNCLOS III). 2\. **STRAIGHT BASELINE** \- For drawing straight baselines, it must not depart to any appreciable extent from the general direction of the coast. Certain sea areas lying within these lines sufficiently closely linked to the land domain to be subject to the regime of international waters. Certain economic interests peculiar to the region, the reality and importance of which are clearly evidenced by long use, should be taken into consideration (Article 7, UNCLOS III). 3\. **CLOSING LINES ACROSS RIVER MOUTHS AND BAYS** \- The concept of closing lines across river mouths and bays is a specific type of baseline used in the determination of a coastal state\'s maritime boundaries under the United Nations Convention on the Law of the Sea (UNCLOS). It deals with how a coastal state can establish a baseline when a coastline includes features like bays and river mouths that complicate the use of the regular low-water line baseline. 4\. **ARCHIPELAGIC BASELINE** \- The archipelagic baseline is a special type of maritime baseline used by archipelagic states---countries that are primarily made up of islands. It allows these states to draw straight lines between the outermost points of the outermost islands, effectively enclosing the waters within those lines as archipelagic waters. This concept is a critical part of the United Nations Convention on the Law of the Sea (UNCLOS III), especially for countries with large numbers of islands like Indonesia and the Philippines. 2 TYPES OF ARCHIPELAGO - **COASTAL ARCHIPELAGO** \- refers to a group of islands situated so close to a main land that they may be considered a part thereof, forming more or less an outer coastline from which it is natural to measure the marginal seas. - **OUTLYING OR MID-OCEAN ARCHIPELAGO** **-** refers to a group of islands situated in the ocean at such distance from the coasts of firm land as to be considered as an independent whole rather than forming part of, our outer coastline of the mainland. STRAIGHT ARCHIPELAGIC BASELINE \- Under Par.1, Article 47, UNCLOS III, an archipelagic state may draw straight archipelagic baselines joining the outermost islands and drying reefs of the archipelago. Article 47 of UNCLOS III provides for the rules on drawing archipelagic baselines, to wit: 1\. The archipelagic waters must include main islands, and the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1; 2\. The length of the baselines shall not exceed 100 nautical miles (nm), however, up to 3 percent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nm; 3\. The drawing of baselines shall not depart to any appreciable extent from the general configuration of the archipelago; 4\. The baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them or where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the nearest island; 5. The system of baselines shall not be applied in such a manner as to cut off from the high seas or the exclusive economic zone the territorial sea of another state; 6\. If a part of the archipelagic waters of an archipelagic state lies between two parts of an immediately adjacent neighboring state, existing rights and all other legitimate interests which the latter state has traditionally exercised in such waters and all rights stipulated by agreement between those states shall continue and be respected; 7.For the purpose of computing the ration of water to land under paragraph 1, land areas may include waters lying within the fringing reefs of islands and atolls, including that part of a steep-sided oceanic plateau which is enclosed or nearly enclosed by a chain of limestone islands and drying reefs lying on the perimeter of the plateau; 8\. The baselines shall be shown on charts of a scale adequate for ascertaining their position. Alternatively, lists of geographical coordinates of points, specifying the geodetic datum, may be submitted; and 9. The state shall give due publicity to such charts or list of geographical coordinates and shall deposit a copy of each such chart or list with the UN Secretary-General. \- In the same vein, under Republic Act No. 9522, the baselines laws are enacted by UNCLOS III state parties to mark-out specific base points along their coasts from which baselines are drawn, either straight or contoured, to serve as geographic stating points to measure the breadth of the maritime zones and continental shelf. \- This law effectively classified the Kalayaan Island Group and the Scarborough Shoal as regime of islands, consistent with UNCLOS III which manifests the Philippine State\'s responsible observation of its pacta sunt servanda obligation (Magallona v. Ermita, G.R. No. 187167, August 16, 2011). \- Under the UNCLOS III, the archipelagic state, such as the Philippines, has the following obligations: **(1)** Respect the traditional fishing rights of third states: **(2)** Respect existing marine cables; **(3)** If a part of the archipelagic waters lies between two parts of an immediately adjacent neighboring state, existing rights and all other legitimate interests which the neighboring state has traditionally exercised in such waters and all rights stipulated by agreement between the archipelagic state and the neighboring state shall continue to be respected; and 4. Provide the right of innocent passage and that of archipelagic sea lanes passage. ARCHIPELAGIC SEA LANES PASSAGE \- pertains to the exercise in accordance with UNCLOS III of the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious, and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone (Par. 3, Article 53, UNCLOS III). TERRITORIAL SEA \- A marine space under the territorial sovereignty of the coastal state up to a limit not exceeding twelve (12) nautical miles measured from the baselines. It comprises the seabed and its subsoil, the adjacent waters, and the airspace (Tanaka, 2012). UNDER ARTICLES 20-25 OF THE UNCLOS III, STATE HAS THE FOLLOWING OBLIGATIONS PERTAINING TO ITS TERRITORIAL SEA: 1\. Protection of navigational aids, cables, and pipelines. 2\. Conservation of marine living resources. 3\. Overall environmental protection and scientific research. 4\. Prevention of the infringement of customs, fiscal, immigration, and sanitary laws. 5\. Ensuring the safety of navigation. 6\. Taking necessary steps to prevent passage which is not innocent. THE RIGHT OF INNOCENT PASSAGE \- is the right of foreign merchant ships to pass unhindered through the sea of a coast (Shaw, 2008). Under Articles 17-20 of the UNCLOS III, ships of all states, coastal or land-locked, including foreign warships, are entitled to the right of innocent passage through the territorial waters of a coastal state. Submarines are likewise entitled, but while traversing the territorial sea, they are required to navigate on the surface and to show their flag. EXCLUSIVE ECONOMIC ZONE (EEZ) \- The EEZ is an area beyond and adjacent to the territorial sea, not extending beyond 200 nautical miles from the baseline of the territorial sea (Articles 55 & 57, UNCLOS III). \- Under Par.1, Article 56, UNCLOS III, the coastal state has sovereign rights for the purpose of exploring, conserving, and managing the natural resources, whether living or nonliving, 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. Also, the coastal state has jurisdiction with regard to the establishment and use of artificial islands, installations, and structures; marine scientific research; and the protection and preservation of the marine environment. \- The sovereign rights in the EEZ are essentially exclusive in the sense that no one may undertake these activities or make a claim to the EEZ without the express consent of the coastal state (Tanaka, 2012). CONTINENTAL SHELF \- The continental shelf of a coastal state 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 marine does not extend up to that distance (Art.76, UNCLOS III). \- Under Article 77, UNCLOS III, the coastal state exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources. The natural resources referred to consist of the mineral and other nonliving resources of the seabed and the subsoil together with living organisms belonging to sedentary species. HIGH SEAS \- The high seas are all parts of the sea that are not within an EEZ, the territorial sea, internal waters or archipelagic waters (Article 86, UNCLOS III). Under Article 89 of UNCLOS III, no state may subject any part of the high seas to its sovereignty. Under Article 87 of the same law, all states, including land-locked states, enjoy the freedoms of the high seas. They are not absolute but must be exercised with due regard for the interests of other states in their exercise of the same freedoms. FREEDOM OF THE HIGH SEAS \- The freedoms of the high seas include navigation, overflight (civilian and military aircraft), lay submarine cables and pipelines, conduct of scientific research, construction of artificial islands, and other installations allowed by international law and fishing (UNCLOS III). States have the duties relative to the high seas such as duty to render assistance, prohibition of the transport of slaves, duty to cooperate in the repression of piracy, duty to cooperate in the suppression of illicit traffic in narcotic drugs or psychotropic substances, and duty to cooperate in the suppression of unauthorized broadcasting from the high seas (Sarmiento, 2009) INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA (ITLOS) \- The UNCLOS created ITLOS, which consists of 21 judges elected by the member states with a system in place to ensure geographic balance. The jurisdiction of the tribunal comprises of all disputes and applications submitted to it in accordance with the UNCLOS and all matters specifically provided for in any other agreement which confers jurisdiction on the tribunal. LESSON: 10 INTERNATIONAL HUMAN RIGHTS LAW \- The **Universal Declaration of Human Rights** **Human rights law** transcends state boundaries by seeking to define and uphold those rights held universally by every person regardless of nationality. The Universal Declaration of Human Rights (UDHR) was adopted by the United Nations General Assembly on December 10, 1984 at Palais de Challiot, Paris. It is not a legally binding treaty but a mere declaration or statement of generally accepted principles of human rights (Humphrey, 1979). \- The **UDHR** states that all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act toward one another in a spirit of brotherhood (Article 1, UDHR). Under Article 2, UDHR, everyone is entitled to all the rights and freedoms set forth in the Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status. Under Articles 1-21 of the UDHR, the **civil** and **political rights** provided therein are as follows: (1) Life, liberty, and security of person; \(2) Freedom from slavery or servitude; \(3) Freedom from torture or to cruel, inhuman, or degrading treatment or punishment; \(4) Recognition everywhere as a person before the law; \(5) Equal protection of the law; \(6) Effective remedy by the competent national tribunals; \(7) Freedom from arbitrary arrest, detention or exile; \(8) Fair and public hearing by an independent and impartial tribunal; \(9) Presumption of innocence until proven guilty; \(10) Freedom from arbitrary interference with his privacy, family, home, or correspondence; (11) Freedom of movement and residence within the borders of each state, and the right to leave any country, including his own, and to return to his country; \(12) Seek and to enjoy in other countries asylum from persecution; \(13) Nationality; \(14) Marry and to found a family; \(15) Own property alone as well as in association with others; \(16) Freedom of thought, conscience, and religion; \(17) Freedom of opinion and expression; \(18) Freedom of peaceful assembly and association; \(19) Take part in the government of his country, directly or through freely chosen representatives; \(20) Right of equal access to public service in his country. Under Articles 22-28 of the UDHR, the **economic**, **social**, and **cultural rights** provided therein are as follows: \(1) Social security; \(2) Work, free choice of employment, just and favorable conditions of work, protection against unemployment, equal pay for equal work, just and favorable remuneration, and the right to form and join trade unions for the protection of his interests; \(3) Rest and leisure; \(4) Standard of living adequate for the health and well-being of himself and of his family; \(5) Education; and \(6) Freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. International Convention on Civil and Political Rights (ICCPR) \- The ICCPR is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966. It entered into force on March 23, 1976. As of March 28, 2014, it has 74 signatories and 167 parties. On December 19, 1966, the Philippines signed it, and the same was ratified on October 23, 1986 (United Nations Treaty Collection). \- Under Article 1, ICCPR, it states that all people have the right of self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social, and cultural development. Also, part of the rights provided therein is to freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit and international law. In no case may a people be deprived of its own means of subsistence. Still under the ICCPR, incorporated therein are rights which are not subject to limitation or suspension even in emergency situations, to wit: \(1) Right to life; \(2) Prohibition on genocide; \(3) Freedom from torture and other cruel, degrading, or inhuman treatment of punishment; \(4) Freedom of enslavement or servitude; \(5) Protection from imprisonment or debt; \(6) Freedom from retroactive penal laws/ex post factor laws; \(7) Recognition as a person before the law; and \(8) Freedom of thought, conscience, and religion. International Convention on Economic, Social and Cultural Rights (ICESCR) \- The ICESCR is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966. It entered into force on January 3, 1976. As of 2015, it has 71 signatories and 164 parties (United Nations Treaty Collection). Convention on Elimination of Discrimination Against Women (CEDAW) **- Article 1** of CEDAW states that discrimination against women refers to any distinction, exclusion, or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment, or exercise of women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil, or any other field. **- Articles 1 and 2** of CEDAW further states that any act of gender-based violence that results in, or is likely to result in, physical, sexual, or psychological harm or suffering to women, including threats of such acts, coercion, or arbitrary deprivation of liberty, whether occurring in public or private life. Migrant Workers Convention \- A migrant worker is defined as one who is to be engaged, is engaged, or has been engaged, in a remunerated activity in a state of which he or she is not a national (Article 2, Migrant Workers Convention). Part Ill of the Migrant Workers Convention details the rights of all migrants and their family members: \(1) Freedom to leave any state, including their state of origin and the right at any time to enter and remain in their state of origin; \(2) Not to be subjected to any torture or to cruel, inhuman, or degrading treatment or punishment; \(3) Not to be held in slavery or forced or compulsory labor; \(4) Right to freedom of thought, conscience, and religion; \(5) Right to hold opinions without interference and to freedom of expression; \(6) Not to be subjected to arbitrary or unlawful interference; \(7) Right against arbitrary deprivation of property; \(8) Right to liberty and security of person; and (9) Right to equality with nationals before courts. United Nations on the Convention on the Rights of the Child (UNCRC) \- **Article 1 of the UNCRC** provides that every human being below the age of 18 years is a child unless under the law applicable to the child, majority is attained earlier. Some of the rights of the child provided in UNCRC are as follows: \(1) Right to be registered at birth; \(2) Right to acquire nationality; \(3) Right to know and be cared for by his parents; \(4) Right not to be separated from his parents against his will; \(5) Freedom of expression; \(6) Freedom of thought, conscience, and religion: \(7) Freedom of association; \(8) Freedom of assembly; \(9) Protection from all forms of physical or mental violence, injury, abuse, neglect, negligent treatment, maltreatment, or exploitation, sexual abuse; \(10) Enjoyment of the highest attainable standard of health; \(11) Right to benefit from social security; \(12) Right to a standard of living adequate for the child\'s physical, mental, spiritual, moral, and social development; \(13) Right to education; \(14) Not to be denied of the right to enjoy his own culture, to profess and practice own religion, or to use his own language: \(15) Right to rest and leisure; \(16) Protection from economic exploitation; and \(17) Protection from all forms of sexual exploitation and sexual abuse. SUMMARY \- International human rights are incorporated in conventions such as the UDHR, ICCPR, ICESCR, among others. States that sign these conventions are bound to comply with their provisions by basing their own national laws to these pronouncements. The Philippines, for instance, formulated laws based on these conventions, particularly CEDAW, Migrant Workers Convention, and the UNCRC. LESSON: 11 PRINCIPLES ON INTERNATIONAL ENVIRONMENT LAW \- branch of public international law comprising of those substantive, procedural, and institutional rules which have as their primary objective the protection of the environment. The term "environment" is understood as encompassing both the creatures and products of the natural world and those of human civilization (Sands & Philippe, 2003). **Essential Environment Principles** PRINCIPLE OF GOOD NEIGHBORLINESS \- States have, in accordance with the Charter of the United Nations and the Principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies and the responsibility to ensure that activities within their Jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction (1972 Stockholm Declaration on the Human Environment, Principle 21). PRECAUTIONARY APPROACH/principle \- When there is a lack of full scientific certainty in establishing a casual link between human activity and environmental effect, the court shall apply the precautionary principle in resolving the case before it (1992 Rio Declaration on Environment and Development, Principle 15). Polluter Pays Principle \- National authorities should endeavor to promote the internationalization of environmental costs and the use of economic instruments, taking into acccount the approach that the polluter should, in principle, bear the costs of pollution with due regard to the public interest and without distorting international trade investment (1992 Rio Declaration on Environment and Developmet, Principle 16). PRINCIPLE OF SUSTAINABLE DEVELOPMENT -It is development that meets the need of the present without compromising the ability of the future genrations to meet their own needs (Our Common Future, UN Document A/42/427)/ Sustainable Development key principle **Environmental Integrity:** \- This principle emphasizes the need to protect natural ecosystems and biodiversity. It encourages practices that minimize pollution, conserve resources, and restore ecological balance, ensuring that natural resources are available for future generations. **Social Equity:** \- Sustainable development seeks to address inequalities and promote social justice. It aims to ensure that all individuals have access to essential resources, opportunities, and services, fostering inclusive participation in decision-making processes. **Economic Viability:** \- This principle focuses on creating economic systems that are resilient and can sustain long- term growth without depleting resources. It advocates for innovation and efficiency in resource use while promoting fair trade and responsible consumption. Environment impact assessment principle \- Environment impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have significant adverse impact on the environment and are subject to a decision of a competent national authority (1992 Rio Declaration on Environment and Development, Principle 17). PRINCIPLE OF INTERGENERATIONAL EQUITY \- Man bears a solemn responsibility to protect and improve the environment for present and future generations (1972 Stockholm Declaration on the Human Environment, Principle 1). PRINCIPLES OF COMMON BUT DIFFERENTIATED RESPONSIBILITY \- Because developed states have contributed disproportionately to global environmental degradation, and because they command greater financial and technological resources, those states have a special responsibility in shouldering the burden of pursuing global sustainable development (Sarmiento, 2009). PRINCIPLES OF NON-DISCRIMINATION \- Each state should ensure that its regime of environmental protection, when addressing pollution origination within the state, does not discriminate between pollution affecting the state and pollution affecting other states (Sarmiento, 2009). STANDARD OF CONDUCT - Strict Liability Theory \- States are under an absolute obligation to Prevent pollution and are liable for its effects irrespective of fault (Shaw, 2008). - Test of due Diligence \- It is the standard that is accepted generally as the most appropriate one. The test of due diligence undoubtedly imports an elements of remoteness and foresee-ability are part of the framework of the liability of the states. The damage that occurs must have been caused by the pollution under consideration (Shaw, 2008). - Long-range trans-boundary air pollution \- Air pollution whose physical origin is situated wholly or in part within the are under the national jurisdiction of one state and which has adverse effects in the area under the jurisdiction of another state at such a distance that is not generally possible to distinguish the contribution of individual emission sources of groups of sources (1979 Convention on Long Range Transboundary Air Pollution, Article 1b). \- The main bases of liability for transboundary pollution under international law are as follows: (1) An absolute duty to protect against harm from ultra- hazardouz activities, which if violated, results in a state being held strictly liable; \(2) The absolute right theory or the responsibility for neighborliness principle. (Sarmiento, 2009) SUMMARY \- The international environmental law consists of several governing principles to be followed by the concerned states. These principles are also coupled with standards of conduct for compliance. In the Philippines, thse principles are readily applied in the environmental laws and recent Philippine jurisprudence.