Homework 04a

1. RA 9522
Section 1: technical adjustments to baselines and
basepoints under RA 3046 (1961) and RA 5446
(1968)
Section 2: Treatment of Kalayaan Island Group (KIG)
and Bajo de Masinloc, aka Scarborough Shoal, as
Regime of Islands; PH still exercises jurisdiction and
sovereignty over these areas
Regime of islands Article 121, UN
Convention on the Law of the Sea (UNCLOS):
other islands which do not geographically
form an integral part of the archipelago, the
Regime of Islands principle allows a different
legal treatment for the purpose of baselines
(they have their own applicable maritime
zones)
Reaction to new baselines law: China and Vietnam,
even domestic, opposition
New baseline law assures compliance with the
UNCLOS and reaffirms Philippines commitment to
the ASEAN-China declaration on the Cod of Conduct
in the South China Sea
2. Magallona v. Ermita
Facts: Petitioners, professors of law, law students, a legislator,
in their capacity as citizens, taxpayers, legislators
respectively, assail the constitutionality of RA 9552 on 2
principal grounds: (1) RA 9522 reduces Philippine maritime
territory, and logically, the reach of the Philippine states
sovereign power, in violation of the 1987 Constitution and (2)
RA 9522 opens the countrys waters landward of the baselines
to maritime passage by all vessels and aircrafts, undermining
Philippine sovereignty and national security. Petitioners also
contend that the treatment of the KIG as regime of islands
results in the loss of a large maritime area and prejudices the
livelihood of subsistence fishermen.
Issues: (1) W/N petitioners have locus standi to bring this suit?
YES
(2) W/N RA 9522 is unconstitutional? NO
Held:

(a) RA 9522 is a statutory tool to demarcate the countrys

maritime zones and continental shelf under UNCLOS III, not to
delineate Philippine territory.
Petitioners claim that RA 9522 dismembers a part of
national territory because it discards the pre-UNCLOS III
demarcation of Philippine territory under the Treaty of
Paris and related treaties, successively encoded in the
definition of national territory under the 35, 73, 87
Constitutions.
SC held that UNCLOS III has NOTHING TO DO with
acquisition or loss of territory. It is a multilateral treaty
regulating sea-use rights over maritime zones,
contiguous zones, EEZs, and continental shelves that
UNCLOS III delimits. Baseline laws such as RA 9522 are
enacted by UNCLOS III States parties to mark-out
specific basepoints along their coasts from which
baselines are drawn to serve as geographic starting
points to measure the breadth of the maritime zones
and continental shelf. Baseline laws are nothing but
statutory mechanisms for UNCLOS III States parties to
delimit with precision the extent of their maritime zone
and continental shelves. In turn, this gives to the
international community notice of the scope of the
maritime space and submarine areas within which
States parties exercise treaty-based rights. Besides,
states acquire/lose territory through occupation,
accretion, cession and prescription, not by executing
multilateral treaties on the regulations of sea-use rights
or enacting statutes to comply with the treatys terms to
delimit maritime zones and continental shelves
(b) RA 9522s use of the framework of regime of islands to
determine the maritime zones of the KIG and Scarborough
Shoal, not inconsistent with the Philippines claim of
sovereignty over these areas
RA 9522 merely followed the basepoints by the previous
baseline law, RA 3046, save for at least 9 basepoints
that were skipped to optimize the location of
basepoints. Under RA 3046, the KIG and Scarborough
Shoal lie outside of the baselines drawn around the
Philippine archipelago. In addition, RA 9522 even
increased the Philippines total maritime space by
optimizing the location of basepoints. Section 2 of RA

9522 commits to text the PH continued claim of

sovereignty and jurisdiction over the KIG and
Scarborough Shoal. Had Congress enclosed the KIG and
Scarborough Shoal as part of the PH archipelago,
adverse legal effects would have ensued (violation of
UNCLOS provisions).
(c) Statutory claim over Sabah under RA 5446 retained.
(d) UNCLOS III and RA 9522 not incompatible with the
Constitutions delineation of internal waters
Petitioners contend that the law unconstitutionally
converts internal waters into archipelagic waters,
hence subjecting these waters to the right of innocent
and sea lanes passage. SC said that whether referred to
as Philippine internal waters under Article I of the
Constitution or as archipelagic waters under the
UNCLOS III, PH exercises sovereignty over the body of
water lying landward of the baselines, including the
airspace over it and submarine areas underneath.
UNCLOS III affirms this.
Concurring Opinion, Velasco (basically, same thing lang as
majority opinion)
3. Reference: Map
4. Regional article on spratlys
Territorial disputes in the oil rich South China Sea
topped the list of security concerns in Southeast Asia
in 2011
Vietnam accused China of damaging an oil
exploration vessel as part of a campaign of
harassment to assert its claim to the entire South
China sea.
Philippines also accused Chinese vessels of
repeatedly intruding into areas they claim in the
potentially oil-rich reserves under the sea.
Lawmakers from the PH traveled to an island in the
disputed region to protest Chinas claim.
6 countries hold conflicting claims
Chinas actions and growing military strength has
alarmed virtually every country in the region and ahs
pushed many to reach out to the US
Such disputes became top priority issue at the
ASEAN annual security summit

China, which insists that the disputes be handled

bilaterally, agreed to guidelines that would lead to a
code of conduct to settle disputes.
PH Foreign Secretary del Rosario said he supported
the agreement but doubted it would solve anything
Hilary Clinton endorsed the agreement but reiterated
the US position that all disputes be settled peacefully
and that freedom of navigation be protected
US increased military presence
Although US, China, ASEAN heads of states publicly
emphasized cooperation and friendship, behind
closed doors, most leaders opposed Chinas bilateral
position and supported multilateral efforts to develop
a code of conduct
5. Current events (Articles)
Tensions rise on South China Sea dispute (by Tom
Allard)
Chinese state media accused the US and PH
of planning a grab for its resources
Clinton said that the US will participate in
open and frank discussions at the ASEAN
Summit
South China Sea is a potential flashpoint
between the US and China as the 2 powers
seek to assert their interests in Asia
Chinas Xinhua news agency said: Now that
Obama is scheduled to appear at the ASEAN
Summit, the PH will embrace the golden
chance to get back at China, again churning
up the South China Sea.
Chinas Global Times: the PH aided and
abetted by the US, was intent on grabbing
resources from Chinese water.
China insists on one-on-one negotiations
China dispatches largest patrol ship to East China
Sea (telegraph.co.uk)
China has locked horns with Japan and
Taiwan over uninhabited islands
Chinas Global Times reported that the
3,000-tonne Haijan 50 will conduct joint
patrols with the Haijan 66.
Hu Jintao urged the Chinese navy to prepare
for military combat and US campaign to
assert itself as a Pacific power

China no longer angry but wants to resolve Spratlys

issue among claimants (Inquirer)
Chinas Peoples Daily: Chinese media even
warned that if the PH seizes Chinese fishing
boats in the disputed waters again, it may
face the military powers of China
Global Times accused the PH and Vietnam of
taking
advantage
of
Chinas
mild
diplomatic stance to push their own
agenda
DFA Secretary del Rosario dismissed the
Global Times statement to be grossly
irresponsible. He also said that he concurs
that China and PH have had a longstanding
friendship; however, even true friendships
encounter challenges, which serve to test
their relationship (lol). He also said that the
issue should be resolved in accord with intl
law.
Philippines seeks 12 F-16 fighter jets, coast guard
ship from US amid territorial row (Associated press)
PH seek a squadron of F-16 jets and a third
coast guard ship from longtime ally US amid
simmering territorial disputes
Del Rosario: PH wants to build a minimum
credible defense posture and the US has
expressed willingness to help us
Analysts: Expect attack from Chinese Military
China may launch a surprise military attack
on India in 2012
Border dispute and joint energy projects
that India has entered into with Vietnam in
areas of the South China Sea which China
claims as its own
Another argument is Indias Look East policy
of an Indian-Japanese defense relationship
US has supported India in its claims along
the border, adding tension between US and
China
Japanese Lawmakers Visit Island Also Claimed by
China
4 municipal politicians from Okinawa arrived
Tuesday on Uotsuri island and spent 2 and a
half hours there

Such members of the Ishigaki municipal

assembly are pressing Japans claim to a
string of rocky uninhabited islands which are
also claimed by Beijing and Taipei
Japan has been claiming it since the 19th
century
China said that the islands have been part
of China since ancient times
Whats at stake is fish, gas, and oil deposits
+ Chinas self-perception as a maritime
nation and the actual existence of a US fleet
Taiwan has stronger historical claim

Homework 5
1. Akehurst, pp. 147-160
a. Acquisition of territory
i. Abbreviated way of describing acquisition of
sovereignty over territory
ii. Sovereignty over territory means the right to
exercise therein, to the exclusion of any other
state, the functions of a state.
iii. Other states, may by treaty or local custom,
acquire minor rights over the territory, such
as a right of way across it
b. Modes of acquisition of territory
i. Transfer of territory take place between
already existing states
ii. Most frequent form of transfer of territory has
occurred when a colony has become
independent
iii. Modes of acquisition are fully relevant only
when title to territory is uncertain
c. Cesssion
i. Is transfer of territory, usually by treaty, from
one state to another
ii. If there were defects in the ceding states
title, title of the state to which territory is
ceded will be vitiated by the same defects (as
in the case of Spain ceding the Philippines to
the US, including the island of Palmas. Palmas
was under Dutch control.)
iii. Cession has now become rare and concerns
marginal areas

d. Occupation
i. Is the acquisition of terra nullius territory
which,
immediately
before
acquisition,
belonged to no state
ii. Territory may never have belonged to any
state or it may have been abandoned by the
previous sovereign
iii. Abandonment requires failure to exercise
authority over territory and intention to
abandon
iv. Territory is occupied when it is placed under
effective control. Requirements of effective
control are strict. But is still a relative concept.
e. Prescription
i. Based on effective control over territory
ii. Effective control needs to be accompanied by
intention and will to act as sovereign
iii. Is the acquisition of territory which belonged
to another state
iv. Control necessary to establish title by
prescription must last for a logner period of
time than in occupation; loss of title by the
former sovereign is not readily presumed
f. Operations of nature
i. State can acquire territory through operations
of nature, as in when rivers silt up
g. Adjudication
i. Does not give a state any territory which it did
not already own
ii. But sometimes, states set up a boundary
commission to mark out an agreed boundary,
but empower it to depart to some extent from
the agreed boundary
h. Conquest
i. State defeated in war used to cede territory.
But conquest alone, without a treaty, could
also confer title on the victor under traditional
law. But not lawful unless the war had come
to an end!
ii. Now, given that right to go to war is
restricted, treaty imposed by an aggressor is

now void. An aggressor cannot acquire

territory by conquest alone.
i. Acquiescence, recognition and estoppel
i. Not strictly speaking modes of acquisition
ii. Where rival claimants can show that it has
exercised a certain degree of control over the
disputed territory, an intl tribunal is likely to
decide the case in favour of the state which
can prove that its title has been recognized by
the other claimant or claimants. Such
recognition may take the form of an express
statement or it may be inferred from
acquiescence
iii. Acquiescence gives rise to estoppel
j. Intertemporal law
i. Which centurys law is to be applied to
determine the validity of title to territory?
ii. General rule: validity of an acquisition of
territory depends on the law in force at the
moment of the alleged acquisition.
iii. But see Island of Palmas case state has to
do more and more to retain its title
k. Legal and political arguments
i. Main political argument are priniples of
geographical
contiguity,
of
historical
continuity and of self-determination
1. Northern Island case
l. Minor rights over territory
i. Lesser rights over territory
ii. Condominium two states agreeing to
exercise sovereignty jointly over certain
territory
iii. State leases part of its territory to another
(temporary transfer of sovereignty)
m. Servitudes
i. Said to arise when territory belonging to one
state is made to serve the interests of
territory belonging to another state
2. Bernas Chapter 7
3. North Cotabato v. Peace Panel