I.

Introduction
Seventy-one percent of the earths surface is covered by ocean waters. The oceans
have considerable effect in altering the worlds climate, weather conditions, air quality,
and provides extensive mineral and petroleum resources. In addition, the fisheries and
maritime produce are the source of 20% of the proteins consumed by humankind.
However, with the continued exploitation, depletion, and deterioration of the oceans
resources by man coupled with the strong maritime states domination at the expense of
other countries interests, fueled the need among many governments to develop a
comprehensive law of the sea to allow an equitable sharing of resources and avoid
conflict and instability.
The First and Second UN Conferences on the Law of the Sea aimed to develop
agreements that would govern uses of the oceans, establish seaward limits on the
breadth of the territorial sea, and settle on the jurisdiction of coastal states over
resources beyond the territorial sea. The first conference, held in 1958, produced four
treaties: on the Territorial Sea and the Contiguous Zone, on the Continental Shelf, on the
High Seas, and on Fishing and the Conservation of Living Resources on the High Seas.
That conference, however, could not reach agreement on the maximum breadth of the
territorial sea or the seaward extent of national jurisdiction over the continental shelf.
The second conference, held in 1960, aimed to standardize the breadth of the territorial
sea, but also failed to reach agreement, mainly because the United States and other
maritime countries refused to accept a territorial sea broader than 6 miles.
Arising from the unresolved issues of the first two conferences, the need to elaborate
a new regime for the oceans compelled the United Nations General Assembly to consider
Ambassador Arvin Pardo of Maltas call for an an effective international regime over the
seabed and the ocean floor beyond a clearly defined national jurisdiction," drawing
attention to the potential riches of the ocean floor which could cause conflicting legal
claims and instability among nations.
The Third UN Conference on the Law of the Sea (UNCLOS III) convened in 1973 with
160 countries participating in nine years of negotiations with the goal of creating a
comprehensive framework for the regulation of all activities on, under, and over the
ocean. Important features of the Convention include navigational rights, territorial sea
limits, economic jurisdiction, legal status of resources on the seabed beyond the limits of
national jurisdiction, passage of ships through narrow straits, conservation and
management of living marine resources, protection of the marine environment, a marine
research regime and, a binding procedure for the settlement of disputes between States.
In 1982, the UN Convention on the Law of the Sea was adopted, despite strong
objections to many of the provisions of Part XI, on seabed mining from the industrialized
states. On 16 November 1994, the UN Convention on the Law of the Sea entered into
force, and presently, around 138 countries including the European Union have become
parties to the agreement.

II.

General Information
1. What is UNCLOS?
The law of the sea is one of the oldest disciplines in international law. It is primarily
concerned with the rules which bind states in their international relations concerning
maritime matters which are basically molded by the political, geographical and economic
relations of states.

2. What is a Treaty?
A treaty is an international agreement embodied in a single formal instrument made
between entities that are subject to international law possessed of international states
and treaty-making capacity, intended to create rights and obligations, or to establish
relationships. The earliest known treaty on the sea is the Treaty of Tordesillas between
Spain and Portugal which divided the Atlantic Ocean into two where both parties were
given the right to exploit and own the lands found in their respective areas.
Treaties are binding only upon the states parties to them, their relations with nonparty states continue to be regulated by customary law; however, the provisions of
treaties may become binding upon other states if they pass into the next source of the
law of the sea, which is customary international law.
3. What is the general rule if there is conflict of Local Law and International
Law?
Whenever there is a conflict between the Convention or Treaty and the Local Law.
Decisions of the courts vary depending on where the case would be filed. Courts of most
states seek to avoid conflicts by interpreting local law so as not to contradict
international law on the basis that the state is not to be presumed to intend to fail in the
discharge of its international obligations. In other words, local law must prevail.
Conversely, if the case is brought before an international tribunal, it will uphold
international law.
The British practice is that when municipal legislation is not compatible with a treaty,
the municipal law will continue to be applied. On the other hand, when the treaty and
statute are on equality, a new treaty prevails over an earlier statute but it is also the
case that a new statute prevails over a treaty. This is the position of the United States,
which has also been traditional in Western Europe. In the case of the Philippines, under
the Philippine Constitution, the Supreme Court has the power to declare a treaty or
executive agreement as unconstitutional.
4. What is Customary international law?
Customary international law is referred to as the international custom, as evidenced
by practice accepted as law.
There are two elements of customary international law:
1. A general and consistent practice adopted by states, which may not necessarily
be universally accepted.
2. Opinio Juris or the conviction that the practice is one, which is either required
or, allowed by customary international law.
Customary international law is evident in the law of the sea. For instance,
the determination of national maritime boundaries was a product of norms dictated by
the worlds maritime powers and were mainly based on the capability of these countries
to protect the sea approaches.

III.

Types of Waters Recognized Under The Convention

There are seven types of waters with varying regimes recognized under the
Convention, namely: (1) Internal Waters; (2) Territorial Sea; (3) Archipelagic Waters; (4)
Contiguous Zone; (5) 200-mile Exclusive Economic Zone; (6) Straits used for
International Navigation; and (7) High Seas.
a.

Internal Waters All waters on the landward side of the baselines of the
territorial sea from which the width of the territorial sea is measured. Thus,
internal waters consist of ports, harbors, rivers, lakes, canals, and all waters on
the landward side. The baseline is normally the low-water mark along the shore.
Under Article 2 of the Convention, internal waters fall under the sovereignty of the
coastal state; therefore, the coastal state has the right to prohibit entry into its
ports by foreign ships. However, there are two exceptions:
1.
2.

b.

damaged.

When a right of innocent passage has previously existed;

When a ship is seeking refuge from a storm or is severely

Territorial Sea - This refers to the waters adjacent to the coasts or a state,
excluding the internal waters in bays and gulfs, which do not form part of the
open sea. The Convention fixes the maximum breadth of the territorial sea a state
may claim at 12 miles seaward from the baseline.
Innocent Passage - The Convention confirms the right,
established in customary international practice of all ships to innocent
passage through the territorial sea. It specifies activities of ships not

considered innocent. The regime of innocent passage does not include the
right of over flight or submerged passage.
Transit Passage - The Convention also confirms the right,
established in customary international practice, of all ships and aircraft to
unimpeded passage in the normal mode through, over, and under the
territorial sea when transiting an international strait without a high-seas route
through it.
c.

Archipelagic Waters All waters inside the archipelagic baselines are

archipelagic waters. The archipelagic state exercises sovereignty over said waters
as stipulated in Part IV of the Convention.
Archipelagic Sea Lanes Passage The exercise of the right of
navigation and over flight in the normal mode for the purpose of continuous,
expeditious, and unobstructed transit between one part and another of the
high seas or an exclusive economic zone. The archipelagic sea lanes passage
may be exercised through the routes normally used for international
navigation.

d.

Contiguous Zone - The Convention recognizes the right of a state to enforce

its customs, fiscal, immigration, and sanitary laws in a contiguous zone adjacent
to the seaward limit of the territorial sea, which can extend as far as 24 miles
from the baseline. The freedoms of navigation and over flight, as well as other
internationally lawful uses of the seas related to these freedoms, including the
right to lay submarine cables and pipelines, are the same in the contiguous zone
as on the high seas.

e.

Exclusive Economic Zone (EEZ) - The Exclusive Economic Zone (EEZ) is the
zone extending seaward from the outer limit of the territorial sea out to 200 miles
from the baseline. The coastal state has sovereign rights within this zone for the
exploration and exploitation of living and non-living resources, establishment and
use of artificial islands, installations and structures, and the preservation of the
marine environment.
The freedoms of navigation and over flight, as well as other internationally
lawful uses of the seas related to these freedoms, including the right to lay
submarine cables and pipelines, are the same in EEZs as on the high seas.
Foreign states may also undertake military activities in EEZs, with due regard
for the rights and duties of the coastal state. Foreign vessels fishing for straddling
stocks and highly migratory species in the portions of the high seas adjacent to
EEZs must have due regard for the impact their actions might have on coastal
state interests.

IV.

f.

Straits Used for International Navigation are those between one area of
the high seas zone and another part of the high seas or an exclusive economic
zone through which all ships and aircraft have the right of transit passage.

g.

High Seas are all parts of the sea that are not included in the exclusive
economic zone, the territorial sea, or the internal waters of a state or in the
archipelagic waters of an archipelagic state. It is open to all states.

Continental Shelf

The continental shelf comprises the sea bed and subsoil of the submarine area that
extend beyond the 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 territorial sea is measured where the outer edge of the
continental margin does not extend up to that distance.
Coastal states have the right to exploit the mineral resources of their continental
shelf but must pay a small commission through the International Sea-Bed Authority
(ISBA) to other states from the proceeds of any exploitation of resources beyond 200
miles from shore.
Coastal state jurisdiction over the continental shelf does not affect the legal status of
the waters above. Thus, beyond the territorial sea, the freedoms of navigation and over
flight, as well as other internationally lawful uses of the seas related to these freedoms,
including the right to lay submarine cables and pipelines, are the same above a
continental shelf as on the high seas.

V.

Types Of Regimes of Waters Recognized Under The Convention

1. What is a Coastal State?
A coastal state is a State comprised
of a broad land area bordered by the
sea.

Figure 1: computer-generated map shows

the geomorphic and tectonic features of
the United States
2. What is an Archipelagic State?
An archipelagic state according to Article 46 of the Convention is a State
consisting of a group of islands, including parts of islands, interconnecting waters
and other natural features which form an intrinsic geographical, economic, and
political entity, or which have been historically regarded as such.

3. What is a Land-locked State?

A land-locked state according to Article 124 of the Convention is a State that
has no seacoast.
4.

What are Enclosed or Semi-enclosed Seas?

An "enclosed or semi-enclosed sea" is a gulf, basin, or sea surrounded by two
or more States and connected to another sea or the ocean by a narrow outlet or

consisting entirely or primarily of the territorial seas and exclusive economic

zones of two or more coastal States.
5. What are Geographically-disadvantaged States?
"Geographically disadvantaged States" are coastal States, including States
bordering enclosed or semi-enclosed seas, whose geographical situation makes
them dependent upon the exploitation of the living resources of the exclusive
economic zones of other States in the sub-region or region for adequate supplies
of fish for the nutritional purposes of their populations or parts thereof, and
coastal States which can claim no exclusive economic zones of their own.

VI.

Rights of the Different Types Of Regimes

1.

What are the rights of a Coastal State?

a.

Coastal states exercise sovereignty over its internal waters, and

territorial sea.
The internal waters of a coastal state are defined as all waters on the
landward side of the baselines of the territorial sea from which the width of
the territorial sea is measured. The baseline is normally the low-water mark
along the shore.
The Territorial Sea refers to the waters adjacent to the coasts or a
state, excluding the internal waters in bays and gulfs, which do not form part
of the open sea. The Convention fixes the maximum breadth of the territorial
sea a state may claim at 12 miles seaward from the baseline. Foreign vessels
are allowed innocent passage through these waters.

Innocent Passage - The Convention confirms the right, established in

customary international practice of all ships to innocent passage through the
territorial sea. It specifies activities of ships not considered innocent. The
regime of innocent passage does not include the right of over flight or
submerged passage.

b.

Coastal states have sovereign rights not territorial rights over the
Exclusive Economic Zone (EEZ) for the exploration and exploitation of living and
non-living resources, establishment, and use of artificial islands, installations, and
structures, and the preservation of the marine environment.
Exclusive Economic Zone (EEZ) - The Exclusive Economic Zone
(EEZ) is the zone extending seaward from the outer limit of the territorial sea
out to 200 miles from the baseline.

c.

Coastal states have the right to enforce its customs, fiscal,

immigration, and sanitary laws in a contiguous zone adjacent to the seaward limit
of the territorial sea, which can extend as far as 24 miles from the baseline. The
freedoms of navigation and over flight, as well as other internationally lawful uses
of the seas related to these freedoms, including the right to lay submarine cables
and pipelines, are the same in the contiguous zone as on the high seas.

d.

Coastal States have sovereign rights over their continental shelf. The
continental shelf comprises the sea bed and subsoil of the submarine area that
extend beyond the 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 territorial sea is measured where
the outer edge of the continental margin does not extend up to that distance.
Coastal states have the right to exploit the mineral resources of their continental
shelf but must pay a small commission through the International Sea-Bed
Authority (ISBA) to other states from the proceeds of any exploitation of resources
beyond 200 miles from shore.

2.

What are the rights of an Archipelagic State?

a. An archipelagic state exercises sovereignty over its archipelagic waters.

Archipelagic waters comprise all the waters inside the archipelagic baselines,
which are composed of straight baselines that connect the outermost islands and
reefs of the archipelagic state.

b. Archipelagic states exercise sovereignty over its internal waters, and territorial
sea.
The internal waters of an archipelagic state are composed of rivers, bays, and
ports within its archipelagic waters defined by straight baselines.

c. Archipelagic states have the right to designate specific sea-lanes for purposes of
transit passage within its archipelagic waters.
Archipelagic Sea Lanes Passage The exercise of the right of
navigation and over flight in the normal mode for the purpose of continuous,
expeditious, and unobstructed transit between one part and another of the high
seas or an exclusive economic zone. The archipelagic sea-lanes passage may be
exercised through the routes normally used for international navigation.

Straits Used for International Navigation are those between

one area of the high seas zone and another part of the high seas or an exclusive
economic zone through which all ships and aircraft have the right of transit
passage.

a. Archipelagic states have sovereign rights not territorial rights over the Exclusive
Economic Zone (EEZ) for the exploration and exploitation of living and non-living
resources, establishment, and use of artificial islands, installations, and
structures, and the preservation of the marine environment.

b. Archipelagic states have the right to enforce its customs, fiscal, immigration, and
sanitary laws in a contiguous zone adjacent to the seaward limit of the territorial
sea, which can extend as far as 24 miles from the baseline. The freedoms of
navigation and over flight, as well as other internationally lawful uses of the seas
related to these freedoms, including the right to lay submarine cables and
pipelines, are the same in the contiguous zone as on the high seas.

c. Archipelagic states have sovereign rights over their continental shelf. Archipelagic
states have the right to exploit the mineral resources of their continental shelf but
must pay a small commission through the International Sea-Bed Authority (ISBA)
to other states from the proceeds of any exploitation of resources beyond 200
miles from shore.
3.

What are the rights of a Land-locked State?

a. Land-locked States have the right of access to and from the sea and freedom of
transit through the territory of Transit States by all means of transport.
A Transit State is a State, with or without a seacoast, situated between a landlocked State and the sea, through whose territory traffic in transit passes.

b. Traffic in transit shall not be subject to any customs duties, taxes or other charges
except charges levied for specific services rendered in connection with such
traffic. Means of transport in transit and other facilities provided for and used by
land-locked States shall not be subject to taxes or charges higher than those
levied for the use of means of transport of the transit State.

c. For the convenience of traffic in transit, free zones or other customs facilities may
be provided at the ports of entry and exit in the transit States, by agreement
between those States and the land-locked States.
4.

What are the rights of Countries with Enclosed or Semi-enclosed Seas?

States that border an enclosed or semi-enclosed sea should cooperate with each
other in the exercise of their rights and in the performance of their duties under UNCLOS.
Through direct cooperation with each other or an appropriate regional organization:

a. To coordinate the management, conservation, exploration and exploitation of the

living resources of the sea;
b. To coordinate the implementation of their rights and duties with respect to the
protection and preservation of the marine environment;

c. To coordinate their scientific research policies and undertake where appropriate

joint programmes of scientific research in the area;

d. To invite, as appropriate, other interested States or international organizations to

cooperate with them in furtherance of the provisions of this article.
5.

What are the rights of a Geographically-disadvantaged States?

Geographically disadvantaged states have the right to participate, on an equitable
basis, in the exploitation of an appropriate part of the surplus of the living resources of
the exclusive economic zones of coastal states of the same sub-region or region.

VII.
1.

UNCLOS and the Philippines National Territory

What is the Philippines Archipelagic Doctrine?

The concept of Archipelagic Doctrine as stated under the second sentence of the
1973 Philippine Constitution is that the waters around, between, and connecting the
islands of the archipelago irrespective of their breadth and dimensions, form part of the
internal waters of the Philippines. This is intended to project the idea that the
Philippines is an archipelago and bolster the archipelagic concept which the Philippines,
together with Indonesia, Mauritius, Fiji and other archipelago states similarly situated had
steadfastly espoused in the Convention. Likewise, the second sentence has been lifted
from the third whereas clause of RA No. 3046 as amended by RA No. 5446.
2.
What is the position of the Philippines regarding the extent of its territorial
and internal waters?
The Philippine position was embodied in RA No. 3046 as amended by RA No. 5446,
which declared that:
a. All the waters within the limits set forth in the Treaty of Paris of December 10, 1898
and the Treaty of Washington of November 7, 1900 both between Spain and US; and the
Treaty concluded between US and Great Britain on January 2, 1930, have always been
regarded as part of the territory of the Philippines.
b. All the waters around, between and connecting the various islands of the Philippine
Archipelago, irrespective of their width or dimension, have always been considered as
necessary appurtenances of the land territory, forming part of the inland or internal
waters of the Philippines.
c. All the waters beyond the outermost island of the archipelago but within the limits of
the boundaries set forth in the afore-mentioned treaties comprise the territorial sea of
the Philippines.
d. The baselines from which the territorial sea of the Philippines is determined consist of
straight lines joining appropriate points of the outermost islands of the archipelago.
3.
What is the extent of the Philippines Exclusive Economic Zone (EEZ)? What
are the countrys rights?
Under Presidential Decree No. 1599 (1978), the Exclusive Economic Zone of the
Philippines has an estimated area of 652, 800 sq. nautical miles. The Philippines
exercises sovereign rights in its EEZ to explore and exploit, conserve and manage the
living or non-living, renewable and non-renewable natural resources of the seabed,
including the subsoil and the superjacent waters, and with regard to other activities for

the economic exploitation and exploration of the resources of the zone, such as the
production of energy from the water, currents and winds.
The Philippines also have exclusive rights and jurisdiction in the establishment and
utilization of artificial islands, offshore terminals, installations, and structures, the
preservation of the marine environment, including the prevention and control of
pollution, and scientific research in the EEZ.