Paper on Territorial Waters

7/31/2019 Paper on Territorial Waters

1/20

The Bangsamoro Territory:

Explanatory Arguments for Territorial Waters1

Brief Background

The nationally defined territory of the Philippines consists of the public domainwhich is made up of areas that were ceded by Spain to the United States in the Treaty ofParis of 1898. The operative stipulation concerning the cession reads in part: Spaincedes to the United States the archipelago known as the Philippine Islands, andcomprehending the islands within certain lines drawn along specified degreeslongitude East and latitude North.

There is opposition to the Philippine claim of sovereignty over its inter-islandwaters to the effect that the waters comprehended within the imaginary lines mentionedin the Treaty were not included. This view holds that only the islands were transferred

but not the intervening waters.2

In this context, the Bangsamoro people more so haveraised the question of the lack of plebiscitary consent on their part as the chief flaw inthe framework of cession.

International law attaches a portion of maritime territory consisting of what thelaw called territorial waters to States whose land is washed by the sea. Beyond itsland domain and its internal waters that belt of territorial sea adjacent to the coast,which is described as territorial sea, forms part of the coastal State. In regard to thispoint, Philippine stand as to the extent of the territorial sea to be fixed as limit is open.

The Philippines is not a party to the Geneva Convention on the Territorial Seaand the Contiguous Zone. But it signed the United Nations Convention on the Law ofthe Sea (UNCLOS) on 10 December 1982 and ratified it on 8 May 1984. The PhilippineGovernment adopted in 1992 a national policy on the Law of the Sea based onUNCLOS although the Convention became effective only on 16 November 1994.

1. The Problem of Delimitation Reformulated

Within the law of-the-sea concept are included the definition of a statesterritorial waters, the right of states to fish the oceans and to mine underneath the seas,and the right of states to control navigation. Because of some problems on the breadthor limits of the territorial sea, the Philippine delegation proposed that it be an

exemption to the 12-mile rule. Thus territorial waters are claimed under historic andlegal title.

1 Paper prepared for the MILF-GRP Exploratory Talks by lawyer Datu Michael O. Mastura, MILF Panelmember (Kuala Lumpur, November 2007). The comments of lawyers Ishak V. Mastura, Musib M. Buat

and Lanang Ali have been incorporated into the discussion.2 Territorial delimitation has preoccupied debates on the National Territory during the Constitutional

Conventions that drafted the 1935 Constitution and 1973 Constitution. The expressions in the 1973

Constitution make no reference to treaties and define the country as an archipelago and its internal waters.

1


2/20


3/20

The territorial sea differs from the internal waters in that the former is subjectto an international right of innocent passage at least in time of peace. The legal statusof territorial sea also extends to the seabed and subsoil under them and to the airspaceabove them. Ownership of petroleum in situ has to be determined. The Conventionprovides the legal basis for undertaking offshore petroleum operations beyond theterritorial waters of a coastal State.

Considerations:The different sea areas claimed by the Philippines in exercise ofits sovereignty as an archipelagic State have their respective juridical status underinternational law. As such, they are subject to a particular international regimediscussed in succeeding pages.

3. Concept of Archipelago

The convention of the Territorial Sea and the Contiguous Zone has described anisland as a naturally-formed area of land, surrounded by water, surrounded by water,which is above water at high tide. Article 121 of UNCLOS adopts this description ofan island. In relation to every nation, if politically independent (or otherwise), it canbe categorized as shown in the Table below.

Islands are coastal States intheir own right

e.g. United Kingdom, Cuba,Sri Lanka

Islands fall under jurisdiction of acoastal State

e.g. Corsica, the Falklands,Andaman islands

Islands form an archipelagic State e.g. Indonesia, Philippines,Fiji islands

Table 1. Category of Islands

Contemporary publicists on international law categorize the types ofarchipelagoes into:

(1) Coastal archipelagoes situated so close to a mainland that they may reasonablybe considered part and parcel thereof. Thus, they form more or less an outercoastline from which it is natural to measure the marginal seas.

3


4/20

(2) Outlying or mid-ocean archipelagoes groups of islands situated out in theocean at such a distance from the coasts of firm land. Thus, they are consideredas an independent whole rather than forming part of the outer coastline of themainland.

Considerations:The coastal States may be subdivided into those bordering theenclosed or semi-enclosed seas and coastal states bordering the oceans. At UNCLOSnegotiation, the nonresource side of maritime jurisdiction is addressed by the coastalStates and the archipelagic States such as rules and regulations relating to innocentpassage and passage in transit.

4. The Philippine Territory

The geographical configuration of the Philippine archipelago constitutes amassif or compact formation and a group of islands situated between latitudes 5 and 21,

and between longitudes 117 and 127 degrees. This geographical formation is fringed allalong by a string of islands and islets of varying sizes and shapes that follow a generaldirection and form a continuous row of land formations.

The latitudes and longitudes described in Article III of the 1898 Treaty of Parisbetween Spain and the United States and the 1900Treaty concluded at WashingtonD.C. between the two countries required another Treaty in 1930 between Great Britainand the United States to fix the boundary lines between North Borneo and thePhilippine Archipelago.

Land area of the Philippines is 115,600 square(statute) miles

87,278 squarenautical miles

Philippine territory described by the InternationalTreaty Limits


Philippine total baselines area defined underRepublic Act 5446 plus enclosed territorial sea


Philippine policy based on UNCLOS coveringmaritime area up to the 200-mile EEZ


Table 2. Geographical Data about Territory

4


5/20

The use of the Treaty Limits as the territorial sea boundary would raise the totalPhilippine area to 702,460 square .miles or 530,239 square nautical miles.

As between two competing ideas of retention or elimination of the NationalTerritory provision, a constitutional delineation appears necessary for reasons ofjurisdiction over territorial waters. Considered as necessary appurtenances5 of its landterritory, all sea pertaining to the Philippine Archipelago as delimited by municipal Actand enabling laws are divided into types of waters:6

(1) national or internal waters embrace all the sea areas lying between andconnecting the constituent islands, islets and other land formations of thearchipelago, irrespective of their width or dimension;

(2) marginal belt of water, in addition to its national waters, surrounding thecoast of the archipelago viewed as a whole or as a unit in law;

(3) contiguous zones assimilated to territorial or jurisdictional waters for certainspecial purposes, and measured from the outer edge of the marginal belt upto the treaty limits; and

(4) superjacent waters of the continental shelf or its analogue in an archipelagoextending seaward from the shores but outside the area of the territories ofother countries.

The Philippine Fisheries Code of 1998

Sec. 64. Philippine waters include all bodies of water within the Philippineterritory such as lakes, rivers, streams, creeks, brooks, ponds, swamps, lagoons,gulfs, bays and seas and other bodies of water now existing or which may hereafterexist in the provinces, cities, municipalities, and barangays and athe waters around,between and connecting the islands of the archipelago regardless of their breath anddimensions, the territorial sea, the sea bed, the insular shelves, and all other watersover which the Philippines has sovereignty and jurisdiction including the 200-nautical miles Exclusive Economic Zone and the continental shelf.

5 This phrase appears in the Philippine Missions Note Verbale of March 7th, 1955. For the full text, consult

Yearbook of the Internal Law Commission, 1956, Vol. II, p. 70.6 The sea areas classified into types of waters became the basis of the new definition of national territory

and the validity of the position at the Conference on the Law of the Sea. Ambassador Juan M. Arreglado

submitted a study dealing with the geographical and juridical delimitation of the extent of its territorial

waters to the 1972 Constitutional Convention. The Philippine delegation to the 1958 Conference on the

Law of the Sea composed of Senator Tolentino as chairman and Jorge Bocobo and Arreglado as members.

5


6/20

Considerations: An important point at this juncture is that no difficultyconfronts the juridical status for most of the superjacent waters of its island shelf thatlie inside the archipelago and accordingly are assimilated into internal waters. Thoseportions situated along the outer limits of the archipelago and which extend seawardsbelong either to the regime of the territorial sea or to that of the contiguous zone.

5. The Philippine Baselines

There are normal baselines and straight baselines to define the archipelagicregime of the territorial sea. Article 5 of the Convention says that the normal base linefor measuring the breadth of the territorial sea is the low-water line along the coast. Allwaters within the normal baselines as provided for marked on large-scale charts areconsidered inland or internal waters of the Philippines.

The Government of the Philippines with respect to its land domain, archipelagicsea lane passage, and inter-island waters with surrounding land has adopted the

archipelagic method joining appropriate points, in drawing a series of straight baselinesabout the external group from which the breadth of the territorial sea is measured.

The Philippine system of straight baselines7 for its territorial sea are defined anddescribed in R.A. 3046 of 1961, as amended by R.A. 5446 of 1968, to correcttypographical errors.8 Following the archipelagic doctrines, the new baselines proposedin 1987 diverts from the maritime territorial boundaries defined under the TreatyLimits. This became necessary to qualify the bases of the Philippine claim to the clusterof islands and islets in the South China Sea as part of the Philippine territory.

This trend towards extended national jurisdiction is but one aspect of the

strategic drive to assume control over natural resources. Not only the economicargument but strategic considerations apply:

(1) The emerging law of the sea regime is closely tied to regime changeincluding the application of the archipelagic state regime, the twelve-mileterritorial sea, the twenty-four-mile contiguous zone, the 200-mile exclusiveeconomic zone, the continental shelf, and the other jurisdictions with regardto marine environment and scientific research.

7 This municipal Act was protested by US Embassy Note No. 836 of May 18, 1961 declaring inter alia the United States Government could not regard claims based on the present legislation as binding upon it or

its nationals.8The principal sponsor was Senator Arturo M. Tolentino. In 1987, Senator Leticia Ramos Shahanisponsored a bill (S. No. 206) to redefine the straight archipelagic baseline but it was not passed during theEight Congress. The definition of the baselines of the the territorial sea of the Philippine Archipelago asprovided in R.A. No. 5446 is without prejudice to the delineation of the baselines of the territorial seaaround the territory of Sabah, situated in North Borneo, over which the Republic of the Philippines hasacquired dominion and sovereignty (Sec. 2). Thus, Congressman Michael O. Mastura introduced H. No.4428 to repeal any reference to delineation on Sabah under Section 2 of R.A. 5446 to read: Philippinenegotiating text on boundary delimitations under the United Nations Law of the Sea Convention.

6


7/20

(2) The emergence of the concept of the exclusive economic zone (EEZ) hashelped to determine the juridical regime in regard to the extent of coastalState and archipelagic State competence landward side of the baseline as wellas seaward from which the breath of the territorial sea is measured.

6. Regime of the Archipelagic State

The enclosed seas of the Philippines, including the Sulu Sea, appear as basin seaswithin the submarine platform that connects Mindanao to rest of the constituentislands, separated by shallow barriers or submarine ridges from the Pacific Ocean to theEast, from the South China Sea to the West, and from the Indonesian Seas to the South.The bottom water of the central seas of the Philippines is not in free communicationwith that of any of the above-mentioned seas and ocean.

According to an international boundary study on limits in the seas,9 thePhilippine straight baseline system in effect:

Adopts a method of measurement within its archipelagic waters in drawing a seriesof 80 straight baselines about the external group and outermost points.

Closes the important Surigao Strait, Sibutu Passage, Balabac Strait and MindoroStrait as well as the more internal passages through the Philippine islands.

Encloses the largest body of water, the Sulu Sea, but other significant seas, theMoro Gulf, Mindanao Sea, Sibuyan etc. are also within the system.

In summary, the enclosure system therefore increases the national territoryapproximately 2.8 fold. Application of the archipelagic regime extends the territorialsea and the resulting land to water ratio is approximately 1:1,841.

Figure 1. Land Area to Territorial Waters Ratio

9Data culled from an analysis of the Philippine straight baselines inInternational Boundary Study, Series

A, Limits in the Seas, No. 33 (March 22, 1973.

Straight Baseline of the Philippines

The method of baseline system can be illustrated by area figures and ratios:

Land Area 115,600 square miles Water Space 328,345 square miles

Say: 328,345 - 115,600 = 212,745 square miles or 1:1,841

7


8/20

The use of the Treaty Limits as the territorial sea boundary would raise the totalPhilippine area to 702,460 square miles or 530,239 square nautical miles. This approachincreases by more than 2.14 the territory within the baselines.

Treaty Limits of the Philippines

The use of the treaty limits can be illustrated by area figures and ratios:Land Area 702,460 square miles Territorial Sea 374,115 square miles

Ratio of Land and Internal Waters to Territorial Sea is 1: 1,139Ratio of Land to Territorial and Internal Waters is approximately 1:5,065

Figure 2. Land and Internal Waters to Territorial Sea

Considerations: As much as the principles for arrangements of rights andinterests of coastal State have been acceptable but outstanding delimitation negotiationscould be carried out where they constitute prejudicial question on the status of theBangsamoro homeland and ancestral domain. The Bangsamoro peoples claim isfounded on historic rights and native title and other special circumstances; it isconsistent with UNCLOS.

7. Outstanding Negotiation Issues

The breadth of the territorial seahence, the seaward extent of the territorialsovereignty of the coastal State or archipelagic Stateis now internationally agreed.

7.1. Extension of Sovereign Authority and Jurisdiction

The doctrine leading to the theory that the seaward limits of territorialsovereignty should coincide with and could not exceed the range of shore-based cannon

is practically abandoned in favor of a twelve-mile limit. The three nautical miles rangewas originally based on one league that international law set as the width of territorialwaters.

Beyond the seaward limits is the domain of the high seas. The principle offreedom of the seas respects the right to navigate, to fish, to lay cables and pipelines,and the freedom of overflight. Now it is recognized that coastal State has jurisdictional

8


9/20

right to regulate, police, and adjudicate the territorial waters and the proprietary rightto control and exploit natural resources in those waters and exclude others from them.

The legal status of territorial waters also extends to the seabed and subsoilunder them and to the airspace above them. Attention has always been focused on thesuperjacent waters and on the commercial use that could be made of these waters. Inpractice, it amounts to navigation and fishing. So the question of where the jurisdictionlay over the natural resources underneath the high seas had to be solved before industrycould move into the domain.

Area of the Philippines including 3 mileterritorial sea about each island is115,600 square nautical miles.

Whether EEZ would be outsideboth itsarchipelagic waters and its territorial seabut falls within the Treaty Limits?

Area of the Philippines with 12 milesterritorial sea about each island is178,000 square nautical miles.

Whether different boundaries of EEZwould be taken as the same boundaries ofthe Contiguous Zone?

Area of the Philippines enclosed inBaselines plus 12-mile territorial seafrom Baselines is 290,850 squarenautical miles.

Whether different boundaries of EEZhave to be determined by agreement withneighboring adjacent coastal State

Table 3 Determination of Expanded Jurisdiction

7.2. The Prolongation Argument

In 1945, America preempted unilaterally to claim the sovereignty over theresources of the subsoil and the seabed of the continental shelf beneath the high seas butcontiguous to the coast of the US. Its proclamation restricts the natural resourcesjurisdiction of the US to its continental shelf.

The prolongation argument holds that the continental shelf should be regardedas an extension of the land mass of the coastal State and thus naturally appurtenant toit. Notably this carries enough weight to support and justify the proclaimedjurisdiction. I.C.J. upheld it in the North Sea Continent Shelf cases (1969).

The 1958 Convention assigns any island a continent shelf. It assigns sovereignrights over it to coastal State, but not to islands. What regime is to be applied to theseabed and subsoil or the resources contained therein beyond the twelve-miles?

9


10/20

The limit of the seaward boundary of the continental shelf includes the sameseabed and subsoil beyond the 12-mile territorial sea up to the distance of 200 milesfrom the baselines or up to the outer edge of the ocean margins.

The Philippine negotiating position at UNCLOS reiterates the necessaryappurtenances of its submarine platform and land formations. Noticeably Article 1 ofthe 1987 Constitution now mentions the insular shelves and other submarine areas,besides the seabed and the subsoil.10 The MILF position is open to production sharingagreement or joint development pact in terms of the environmental aspects and theinternationalization of the extractive industry.

Negotiation Pointers: National regulatory regimes for petroleum may becategorized by the type of authorization that is provided for. Authorizations take theform of either a license or a contract of work. The manner in which the rights attachedto a license or a contract area are described in the basic petroleum law. A government

with a production sharing system does not grant a concession.

Authorization matrix:

Ownership of petroleum in situ Petroleum as occurring under naturalconditions vests in the State on the surface or in the subsoil

Ownership of petroleum after Production license or contract confers

ownership extraction from the on the holder per terms and conditionsreservoir

The Petroleum Act of 1949 contained the clause, whether found in, on or underthe surface of dry lands, creeks, rivers, lakes, or other submerged lands within theterritorial waters. The licensing regime was in essence a property law extending theownership of land to the mineral resources. Suchproperty right mineral acquisition rightscould be obtained from the public or private owner of the land concerned. The case ofwetlandssuch as the Liguasan marshland of almost 45,000 hectares purported to hold

significant deposits the ownership of petroleumcould be tied to their disposition.From the point of legal theory, the migratory character of liquid and gaseous petroleumwas correctly posed as a problem on the nature of the ownership of petroleum.

10Proclamation No. 370, 1968 declares as subjection to the jurisdiction and control of the State all mineral

and other natural resources in the continental shelf of the Philippines. Extended jurisdiction covers the

areas of seabed mining and off-shore petroleum.

10


11/20

In so far as relevant for the interpretation of the Petroleum Act of 1949, asamended, geologically speaking, the Philippine mission to the First Conference on theLaw of the Sea enunciated its position based on the Note Verbale of March 7, 1955 tothe UN Secretary General.

Note Verbale 1955

All natural deposits or occurences of petroleum or natural gas in public and/orprivate lands (or other submerged lands) within the territorial waters or on thecontinental shelf, or its analogue in an archipelago, from the shores of thePhilippines which are not within the territories of other countries belong inalienablyand imprescriptively to the Philippines, subject to the right of innocent passage ofships of friendly foreign States over these waters.

The Proclamation of March 20, 1968 has substantially modernized it where thecontinental shelf is shared with an adjacent state. In this case the boundary shall bedetermined by the Philippines and that state in accordance with legal and equitableprinciples. It is declared the character of the waters above these submarine areas ashigh seas and that of the airspace above those waters is not affected by thisproclamation.

Prospecting/ Extracting from Reservoir

Petroleum a mixture of liquids and gases is a natural resource that is not fixed atthe place of its generation, unlike other mineral resources that fixed at their placeat the surface or in the subsoil. After generation petroleum migrates and movesthrough the porous and permeable rock layers of the subsoil. . As a matter of factthe production operation can be said to start a secondary migration. As soon aswells are drilled from the surface into a reservoir the petroleum starts flowing intothese wells and through the tubing inside the wells up to the wellhead at thesurface or at the bottom of the sea, as the case may be. The oil/water separation is

critical. The oil/gas separation can be described as the first stage of the refiningprocess.

Source: Petroleum, Industry and Governments, 1999

11


12/20

The Convention sets the basic conditions of prospecting, exploration andexploitation (see Annex) for specified categories of resources in the area covered by aplan of work.

Question: What is the implication of the new extensions of coastal Statesovereignty once EEZ is added to those of the continental shelf and the archipelagicwaters?

The key is in understanding first the notion of continental shelf. It refers to theseabed area beyond the territorial sea to the superjacent waters. Does the insular shelflie outsideboth the territorial sea and archipelagic waters? For the Philippines, on theside facing the Pacific, there is an immediateocean deep in Mindanao.

In the Philippines, geologically speaking, similar to Indonesia some of the seabedunder its archipelagic waters or territorial sea may fall within the meaning ofcontinental shelf. Therefore, legally speaking, the Philippines does not consider it aspart of the regime of continental shelf but as part of the regime of archipelagic waters or

territorial sea.

7.2. Equidistance and the Middle-Line Argument

The archipelagic State as sovereign entity is self-determined to assert the surfaceboundary line issue in the management of marine resources. In regard to extendedfishery jurisdiction out to 200 miles from the shore the new framework of coastal fisherymanagement has replaced the traditional fishery regimes. In the long run, it is better toprotect and secure the entire stock within coastal waters than to depend on the catch

from distant water fishery.

Jurisdictional/ boundary disputes in the South China Sea or the Sulu Sea orMindanao Sea do not have its roots in fishery matters. The marine boundarydelimitation is a separate nonresource issue from marine fisheries and open access toliving resources. Marine resources are transboundary in nature. The migratory patternof species is of relevance to fisheries jurisdiction in a regional setting here.

Negotiation Pointers: Acceptance of the concept of the exclusive economiczone does not lessen the need for cooperation for management of resources. Preferentialuse based on Maximum Sustainable Yield (MSY) or Total Allowable Catch (TAC) aims

to protect the rights of fisherfolk.

12


13/20

Demarcation Matrix of Fishery Rights:Traditional fishery rights in Any reference to traditional fishing rights appliesterritorial waters and certain to the fishermen themselves, their equipment, their

areas of the archipelagic catch, and their fishing grounds or area to waterswaters or near-shores which the waters rights and activities are applied.

Fishery management regime Joint marine resource management of the coast forofdistant waterfishermen/ developing fishing industry and fishery reserve,fleet or commercial fisheries refuge, and sanctuaries

The Fisheries Code of the Philippines under Section 80 provides fishery reservesand sanctuaries in Philippine waters. An area or areas beyond fifteen (15) kilometers

from shoreline may be designated for the exclusive use of the government or any of itspolitical subdivisions, agencies or instrumentalities, for propagation, educational,research and scientific purposes. The MILF position is the application of thearchipelagic State regime such that the governing principle is land and sea cannot beseparated as part of the same ecological system.

Coastal Faade Theory

Apart from the concerns of proportionality for island-countries facing continental landmasses and the littoral states, another point is the configuration of most semi-enclosedseas in the operation of distant-water fishing. In effect the extension of zones ofeconomic jurisdiction of the Philippines and the adjacent countries to 200 miles couldleave no high seas area within the semi-enclosed sea (South China Sea) and enclosedsea (Sulu Sea). Property rights, then, once established, will set the stage for resourcesmanagement and environmental purposes.

The delimitation of the continental shelf boundary differs from the EEZ, whichis for the water column, in concepts and outer limits. In fact, the actual lines ofdelimitation between opposite and adjacent neighboring States can also be differentcorrespondingly. The point here is that the median-line argument does not always seemthe last resort when the principle of equidistance renders inequitable divide.

13


14/20

Juridical Status and Ocean Regime

Extensions of coastal sovereignty and jurisdiction at Sea include application of:- Archipelagic state regime

- Twelve-mile (12) territorial sea- Twenty-four (24) contiguous zone- Two hundred-mile exclusive economic zone- Continental shelf (up to edge of ocean margins)

Various jurisdictions on marine environment, and management of marine resources.

Geographical discrepancy among ASEAN member countries deters them fromestablishing permanent exclusive fishing zone and to delimit the respective EEZ

boundaries. North Borneo is only 18 miles away from the nearest island of the Suluarchipelago. Since the continental shelf regime on which Malaysia rests its claim to partof the Spratlys begins from the coast of Sabah, the sovereignty-based Philippine claimhas become less pronounced as thematic continuity.

7.3. The Historic Title Argument

As shown in the previous section, there exists prejudicial error and technicaldiscrepancy between the baselines and the treaty limits demarcation lines. TheNational Mapping and Resource Information Authority (NAMRIA) explains that by

signing and ratifying the UNCLOS the Philippines stands to lose some waters that weredefined within the Treaty of Paris. But it means also acquiring some parts of the oceanthat were not within the limits of the National Territory before.

Negotiation Pointers: A number of factors in the evolution of the archipelagicState have important bearing on the territory of the Bangsamoro juridical entity.

First, there are legal factors. The term archipelago is defined for the purposesof the Convention. It means a group of islands closely interrelated or whichhistorically have been regarded as such. The MILF ancestral domain claim is in

keeping with this argument based on shared or earned sovereignty. Of course it hasbearing on customs, immigration, and quarantine (CIQ) regulatory regime.

14


15/20

UNCLOS, Paragraph 4 of Article 49

The regime of archipelagic sea lanes passage established in the Part shall not inother respects affect the status of the archipelagic waters, including the sea lanes,or the exercise by the archipelagic state of its sovereignty over such waters andtheir air space, bed and subsoils, and the resources contained there.

As incident to the legal status of archipelagic waters, it binds the islands, waters,and other natural features of the Philippines as an intrinsic geographical economic andpolitical entity or which historically have been regarded as such. Anticipations ofdiplomatic sensitivity to pressing issues that impinge on the island-countrysoverlapping maritime areas with Indonesia, Malaysia and Vietnam is important toencourage regional cooperative arrangements for the Bangsamoro juridical entity.

Second, there are unsettled territorial disputes. Aside from the Sabah claim, theSpratleys dispute has had little significance to the previous framework of peaceagreement between GRP and MNLF. This can explain why in the current GRP andMILF peace talks the negotiations cover ancestral land domain, territorial waters andnatural resources. The influence of power politics in establishing ocean regime is notnew to the Bangsamoro as a maritime people. Current law-of-the-sea diplomacy andpolitics can make the envisioned Bangsamoro juridical entity regain naturally andsurvive incrementally the grabbing game of ocean resources.

Third, there are tangible natural features. Along the southern Treaty boundary

of the Sulu Sea delimiting the maritime frontier between the Philippines and NorthBorneo, it is dotted by rocky islets and shoal patches which reduce the navigablechannels. The waters of Sulu Sea do not envelope nor touch the coast of any otherlittoral State. It covers a total area of 85,000 square miles and accentuates the mostprominent feature of the archipelagic State with a sea lane passage.

Enclosed or Semi-enclosed Sea

Article 122 defines an enclosed or semi-enclosed sea as a gulf, basin, or sea

surrounded by two or more states and connected to the open seas by a narrowoutlet or consisting entirely or primarily of the territorial seas and exclusiveeconomic zones of two or more coastal States.

15


16/20

This provision does not deal with the issue of delimitation or the question of thefreedom of navigation in these maritime areas. On this matter, the Convention does notcreate a special regime for those zones. So it avoids imposing, under Article 123, thecooperation of maritime nations bordering enclosed or semi-enclosed seas. The MILFbelieves that is at the basis of a historic right to marine resources in the Sulu Sea,Moro Gulf, and Mindanao Sea areas.

Given finally the attention to the law of the sea regime, the foundation forPhilippine national arrangement runs counter to the Indonesian straight baselines inthe southeast extreme facing the Pacific Ocean. The Indonesian island of Pulau Miangasis contained within the Philippine territorial sea and the Indonesian straight baselines.Within the meaning of Article 123, it could be also the external and internal aspects ofthe common fisheries policy or common border joint patrol.

Conclusion

One does not expect sovereignty to remain unaffected to organize contemporaryreality into two distinct spheres of the domestic and the international. TheGovernment has to reassess the constitutional implications of its involvement innegotiations concerning either sovereign rights or joint use and exploitation ofresources, for example, in the Spratleys (See CIRSS Papers, 1993, Foreign ServiceInstitute). The bases of title and the claims of sovereignty rights are increasinglyblurred or indistinct based on concepts evolved gradually in the law of the sea regime.

Because the matter of the extension of coastal sovereignty and jurisdiction at seawas the weightiest consideration leading to the decision of the Government to signthe UNCLOS, it has anchored its archipelagic doctrine on the unique nature and

configuration of the territorial sea.

The Bangsamoro juridical entitys geographical significance lies in the fact thatit consists of two different components:

the mainland Mindanao eastern part characterized by its land domain element;and

the maritime domain western part waters element of which the Sulu sea areaslargely prevails, together with the Moro Gulf and the Mindanao Sea.

End

MI/MM

Draft TextMap of Category C

16


17/20


18/20


19/20

Question: What is the implication of the new extensions of coastal State sovereigntyonce EEZ is added to those of the continental shelf and the archipelagic waters?

Understand first the notion of continental shelf.

It refers to the seabed area beyond the territorial sea to the superjacent waters. Doesthe insular shelf lie outsideboth the territorial sea and archipelagic waters? For thePhilippines, on the side facing the Pacific, there is an immediateocean deep in Mindanao.

In the Philippines, like Indonesia, geologically speaking, some of the seabed under itsarchipelagic waters or territorial sea may fall within the meaning of continental shelf.

Therefore, legally speaking, the Philippines does not consider it as part of the regime ofcontinental shelf but as part of the regime of archipelagic waters or territorial sea. Andso, the country has full territorial sovereignty over the areas rather than merelysovereign rights to the exploration and exploitation of resources.

The delimitation issues remain unresolved with respect to:

- the Celebes with Indonesia- the South China Sea with Malaysia, Vietnam, and China- the mutual margin with Malaysia and Indonesia

The Petroleum Act of 1949, as amended, is practically similar to the American legalsystem that takes into account and recognizes the special physical characteristics of amineral resource consisting of a mixture of liquid and gaseous substances.

In fact this legal system was no more than extending the ownership of land to themineral resources on or beneath the land. As such, the property right mineralacquisition rights could be obtained from the public or private owner of the land.

Question: What if the mineral and other natural resources are located in the continentalshelf adjacent to the Philippines is shared with an adjacent state? The boundaries haveto be determined by the Philippines and that country in accordance with legal andequitable principles.

The character of the waters above these submarine areas as high seas and that of theairspace above those waters is not affected according to Presidential Decree No. 370

dated March 20, 1968.

Know the determination of the legal regime- Establish own EEZ outside its territorial sea around the Philippine archipelago

19


20/20

Note: For the Philippines, the EEZ is outside both its archipelagic waters and itsterritorial sea. The regime will follow as much as possible the text of theConvention.

Presidential Decree No. 1599 dated June 11, 1978 establishes an EEZ. By this, itextends to a distance of 200 nautical miles beyond and from the baselines fromwhich the territorial sea is measured.

Where the outer limits of the zone as thus determined overlap the EEZ of anadjacent or neighboring state, the common boundaries is to be determined byagreement with the state concerned or in accordance with principles ofinternational law on delimitation.

The expression in the decree without prejudice to rights over its territorial seaand continental shelf is a caveat to the exercise of sovereign rights for purposesof exploration and exploitation, conservation and management of the naturalresources of the seabed, subsoil and the superjacent waters (i.e. from production

of energy from the water, currents and winds).

Area of the Philippines including 3 mile territorial sea about each island is115,600 square nautical miles.

Area of the Philippines with 12 miles territorial sea about each island is 178,000square nautical miles.

Area of the Philippines enclosed in Baselines plus 12-mile territorial sea fromBaselines is 290,850 square nautical miles.

- Manage own EEZ and marine environment coordinated with management of thearchipelagic waters

The legal regimes of the two areas are different yet they are interrelated, and soin physical fact would form an integrated ecosystem.

Note: The Philippines has declared its EEZ under P.D. 1599 and its basicpetroleum zone under Proclamation No. 370.

MI / MMNovember 7, 2007

20

Paper on Territorial Waters

Documents

Transcript of Paper on Territorial Waters