Unclos Cases.docx

Western Sahara Case [Advisory Opinion, I.C.J. (1975)] On 13 December 1974, the General Assembly requested an advisory opinion on the following questions : “I. Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of colonization by Spain a territory belonging to no one (terra nullius) ?” If the answer to the first question is in the negative, “II. What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity ?” In its Advisory Opinion, delivered on 16 October 1975, the Court replied to Question I in the negative. In reply to Question II, it expressed the opinion that the materials and information presented to it showed the existence, at the time of Spanish colonization, of legal ties of allegiance between the Sultan of Morocco and some of the tribes living in the territory of Western Sahara. They equally showed the existence of rights, including some rights relating to the land, which constituted legal ties between the Mauritanian entity, as understood by the Court, and the territory of Western Sahara. On the other hand, the Court’s conclusion was that the materials and information presented to it did not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity. Thus the Court did not find any legal ties of such a nature as might affect the application of the General Assembly’s 1960 resolution 1514 (XV) — containing the Declaration on the Granting of Independence to Colonial Countries and Peoples — in the decolonization of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the territory. Island of Palmas Case [2 U.N. R.I.A.A. 829] Facts. 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. Can a title which is inchoate prevail over a definite title found on the continuous and peaceful display of sovereignty? Held. (Huber, Arb.). No. A title that is inchoate cannot prevail over a definite title found on the continuous and peaceful display of sovereignty. The peaceful and continuous display of territorial sovereignty is as good as title. However, discovery alone without subsequent act cannot suffice to prove sovereignty over the island. The territorial sovereignty of the Netherlands (D) was not contested by anyone from 1700 to 1906. The title of discovery at best an inchoate title does not therefore prevail over the Netherlands (D) claims of sovereignty.

Discussion. Evidence of contracts made by the East India Company and the Netherlands (D) was examined by the arbitrator. The claims made by the Netherlands (D) were also based on the premise of the convention it had with the princes and native chieftains of the islands. Hence, at the time of the Treaty of Paris in 1898, Spain was found not to have dominion over the island. y 4,700 private U.S. claims, ordered payment by Iran (D) to U.S. nationals amounting to over $2.5 billion. Sec. 2, R.A. 5446 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.

Magalona vs Ermita Archipelagic Doctrine

MAGALONA VS ERMITA G.R. No. 187167

16Aug2011

Prof. Merlin Magalona, et al., Petitioners, vs Hon. Eduardo Ermita in his capacityas Executive Secretary, et al., Respondents.

Facts: In March 2009, R.A. 9522 was enacted by the Congress to comply with the terms of the United Nations Convention on the Law of the Sea (UNCLOS III), which the Philippines ratified on February 27, 1984. Professor Merlin Magallona et al questioned the validity of RA 9522 as they contend, among others, that the law decreased the national territory of the Philippines. Some of their particular arguments are as follows:

1. RA 9522 reduces Philippine maritime territory, and logically, the reach of the Philippine state’s sovereign power, in violation of Article 1 of the 1987 Constitution, embodying the terms of the Treaty of Paris and ancillary treaties. 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. 3. RA 9522’s treatmentof 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. Hence, petitioners files action for the writs of certiorari and prohibition assails the constitutionality of Republic Act No. 95221 (RA 9522) adjusting the country’s archipelagic baselines and classifying the baseline regime of nearby territories. Issues: Whether or not RA 9522, the amendatory Philippine Baseline Law is unconstitutional. Discussions: The provision of Art I 198 Constitution clearly affirms the archipelagic doctrine, which we connect the outermost points of our archipelago with straight baselines and consider all the waters enclosed thereby as internal waters. RA 9522, as a Statutory Tool to Demarcate the Country’s Maritime Zones and Continental Shelf Under UNCLOS III, gave nothing less than an explicit definition in congruent with the archipelagic doctrine.

Rulings: No. The Court finds R.A. 9522 constitutional. It is a Statutory Tool to Demarcate the Country’s Maritime Zones and Continental Shelf Under UNCLOS III, not to Delineate Philippine Territory. It is a vital step in safeguarding the country’s maritime zones. It also allows an

internationally-recognized delimitation of the breadth of the Philippine’s maritime zones and continental shelf. Additionally, The Court finds that the conversion of internal waters into archipelagic waters will not risk the Philippines as affirmed in the Article 49 of the UNCLOS III, an archipelagic State has sovereign power that extends to the waters enclosed by the archipelagic baselines, regardless of their depth or distance from the coast. It is further stated that the regime of archipelagic sea lanes passage will not affect the status of its archipelagic waters or the exercise of sovereignty over waters and air space, bed and subsoil and the resources therein. The Court further stressed that the baseline laws are mere mechanisms for the UNCLOS III to precisely describe the delimitations. It serves as a notice to the international family of states and it is in no way affecting or producing any effect like enlargement or diminution of territories.