INTERNATIONAL HUMAN RIGHTS

1. UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR) 3. INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL, AND
CULTURAL RIGHTS
The UDHR is the first comprehensive catalogue of human rights proclaimed by
an international organization. It embodies the second generation of human rights, although it lists more rights
than the UDHR, namely:
It is NOT a treaty. It has no obligatory character because it was adopted by the 1. The right to health;
UN General Assembly as Resolution 217A (III). As a resolution, it is merely 2. The right to strike;
recommendatory. 3. The right to be free from hunger;
4. The right to enjoy the benefits of scientific progress;
Accordingly, it has been observed that the Universal Declaration of Human 5. Freedom for scientific research and creativity.
Rights no longer fits into the dichotomy of “binding treaty” against “non-
binding pronouncement”, but is rather an authoritative statement of the The obligation of a state party to the ICESCR is to undertake the necessary
international community. Thus, a Declaration creates an expectation of steps to the maximum of its available resources, with a view to achieving
adherence, and insofar as the expectation is gradually justified by State progressively the full realization of the rights enumerated in the covenant by all
practice, a declaration may by custom become recognized as laying down rules appropriate means.
binding upon the States. Indeed, several commentators have concluded that the
Universal Declaration has become, in toto, a part of binding, customary
international law.

In the Philippines, the UDHR is considered as customary international law. COMMON PROVISIONS IN THE ICCPR AND ICESCR
Universal Declaration of Human Rights (UDHR) has been interpreted by this
Court as part of the generally accepted principles of international law and The common provisions of the two covenants deal with collective rights,
binding on the State. namely:
1. The right of self-determination of peoples;
The UDHR embodies both first and second generation rights. 2. The right of peoples to freely dispose oftheir natural wealth and
resources; and
The civil and political rights (1st Generation Rights) enumerated in the 3. The right of peoples not to be deprived of their own means of
UDHR include right such as: subsistence.
1. The right to life, liberty, privacy and securityof person; These rights were not covered by the UDHR.
2. Prohibition against slavery;
3. The right not to be subjected to arbitraryarrest, detention or exile; Philippine Jurisprudence on Human Rights
4. The right to fair trial and presumption ofinnocence; 1. On enforced disappearances (Razon v. Tagitis, G.R. No. 182498
5. The right to a nationality; (2009):
6. The right to freedom of thought,conscience and religion; a. Any act of enforced disappearance isan offence to
7. The right to freedom of opinion andexpression; dignity. It is condemned as a denial of the purposes
8. The right to peaceful assembly andassociation; of the Charter of the United Nations and as a grave
9. The right to take part in the government ofhis country. and flagrant violation of human rights and
fundamental freedoms proclaimed in the Universal
The Economic, social, and cultural rights enumerated in the UDHR include Declaration of Human Rights and reaffirmed and
rights such as: developed in international instruments in this field.
1. The right to social security; 2. On the principle of non-discrimination vis-à-vis the right to
2. The right to work and protection against unemployment; electoral participation (Ang Ladlad LGBT Party vs. Commission
3. The right to equal pay for equal work; on Elections; G.R. No. 190582, (2010))
4. The right to form and join trade unions; a. The principle of non- discrimination requires that
5. The right to rest and leisure. laws of general application relating to elections be
applied equally to all persons, regardless of sexual
2. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL orientation. Although sexual orientation is not
RIGHTS (ICCPR) specifically enumerated as a status or ratio for
discrimination in Article 26 of the ICCPR, the
It embodies the first generation of human rights, although it lists more rights ICCPR Human Rights Committee has opined that
than the UDHR, namely: the reference to “sex” in Article 26 should be
1. The right to own property; construed to include “sexual orientation”.
2. The right to seek in other countries asylum from prosecution; 3. On the right to nationality (Poe- Llamanzares v. Comelec; G.R.
3. The right of members of ethnic, religious or linguistic groups not No. 221697, (2016)):
to be denied to enjoy their own culture, to profess and practice a. The common thread of the UDHR, UNCRC and
their own religion, or to use their own language; ICCPR is to obligate the Philippines to grant
4. The right to compensation in case of unlawful arrest; nationality from birth and ensure that no child is
5. The right to legal assistance in criminal prosecution; stateless.
6. The right against self-incrimination;
7. Protection against double jeopardy;
8. The right to review by higher tribunal incase of criminal
conviction;
9. The right of every child to nationality; Q: Walang Sugat, a vigilante group composed of private businessmen and civic
10. The right to protection of a child as requiredby his status as a leaders previously victimized by the Nationalist Patriotic Army (NPA) rebel group,
minor; was implicated in the torture and kidnapping of Dr. Mengele, a known NPA
sympathizer. Under public international law, what rules properly apply? What
11. The right of persons below 18 years old notto be sentenced to
liabilities, if any, arise thereunder if Walang Sugat’s involvement is confirmed? (1992
death for crimes; BAR)
12. The right against the carrying out of death sentence on the part of A: On the assumption that Dr. Mengele is a foreigner, his torture violates the
a pregnant woman. International Covenant on Civil and Political Rights, to which the Philippine has
acceded. Article 7 of the Covenant on Civil and Political Rights provides: “No one
The following are obligations of state parties under the ICCPR: shall be subjected to torture or to cruel, inhuman or degrading treatment or
1. State parties undertake to respect and toensure to all individuals punishment." In accordance with Article 2 of the Covenant on Civil and Political
within their territory the rights enumerated therein, without Rights, it is the obligation of the Philippines to ensure that Dr. Mengele has an
distinction of any kind, such as race, color, sex, language, effective remedy, that he shall have his right to such a remedy determined by
religion, political or otheropinion, national or social origin, birth competent authority, and to ensure the enforcement of such remedy when granted.
orother status.
2. State parties are required to take thenecessary steps to adopt
legislative or other measures that are necessary to give effect to
the rights recognized in the ICCPR. Q: Not too long ago, “allied forces", led by American and British armed forces,
3. State parties must ensure that any person whose rights or invaded Iraq to “liberate the Iraqis and destroy suspected weapons of mass
freedoms are violated have an effective remedy, notwithstanding destruction." The Security Council of the United Nations failed to reach a consensus
that the violation has been committed by persons action in an on whether to support or oppose the “war of liberation” Can the action taken by the
official capacity. allied forces find justification in International Law? Explain. (2003 BAR)
4. State parties must ensure that any person claiming such remedy A: The United States and its allied forces cannot justify their invasion of Iraq on the
shall have his right thereto determined by competent judicial, basis of selfdefense under Article 51 attack by Iraq, and there was no necessity for
administrative or legislative authority, and that they shall enforce anticipatory self- defense which may be justified under customary international law.
the remedy when granted Neither can they justify their invasion on the ground that Article 42 of the Charter of
5. To ensure that the competent authorities shall enforce such the United Nations permits the use of force against a State if it is sanctioned by the
remedies when granted. Security Council. Resolution 1441, which gave Iraq a final opportunity to disarm or
face serious consequences, did not authorize the use of armed force.

1
Q: On October 13, 2001, members of Ali Baba, a political extremist organization Q: The surviving Filipina "comfort women" demand that the Japanese government
based in and under the protection of Country X and espousing violence worldwide as apologize and pay them compensation. However, under the 1951 San Francisco Peace
a means of achieving its objectives, planted high-powered explosives and bombs at Agreement – the legal instrument that ended the state of war between Japan and the
the International Trade Tower (ITT) in Jewel City in Country Y, a member of the Allied Forces – all the injured states, including the Philippines, received war
United Nations. As a result of the bombing and the collapse of the 100-story twin reparations and, in return, waived all claims against Japan arising from the war. Is that
towers, about 2,000 people, including women and children, were killed or injured, and a valid defense?
billions of dollars in property were lost. Immediately after the incident, Ali Baba, A: The defense is not valid. Under the preamble of the San Francisco Treaty, Japan
speaking through its leader Bin Derdandat, admitted and owned responsibility for the undertook to conform to the protection and observance of human rights. Article 103
bombing of ITT, saying that it was done to pressure Country Y to release captured of the United Nations Charter provides that the obligations of the member-State
members of the terrorist group. Ali Baba threatened to repeat its terrorist acts against prevail over any other international agreement. The waiver in Article 14(a) of the San
Country Y if the latter and its allies failed to accede to Ali Baba’s demands. In Francisco Treaty is qualified by Article 14(b), which stated that Japan had no
response, Country Y demanded that Country X surrender and deliver Bin Derdandat resources presently sufficient to make complete reparation for all such damages and
to the government authorities of Country Y for the purpose of trial and “in the name sufferings and meet its other obligations. Thus, the waiver was operative only while
of justice.” Country X refused to accede to the demand of Country Y. What action or Japan had inadequate resources.
actions can Country Y legally take against Ali Baba and Country X to stop the
terrorist activities of Ali Baba and dissuade Country X from harboring and giving Q: The surviving Filipina "comfort women" sue the Japanese government for
protection to the terrorist organization? Support your answer with reasons. (2002 damages before Philippine courts. Will that case prosper?
BAR) A: The Filipina “comfort women” cannot sue Japan for damages, because a foreign
A: Country Y may exercise the right of self- defense, as provided under Article 51 of State may not be sued before Philippine courts as a consequence of the principles of
the UN Charter “until the Security Council has taken measure necessary to maintain independence and equality of States (Republic of Indonesia v. Vinzon, 405 SCRA
international peace and security”. Selfdefense enables Country Y to use force against 126). Prisoners of war
Country X as well as against the Ali Baba organization. It may bring the matter to the
Security Council which may authorize sanctions against Country X, including Q: Reden, Jolan and Andy, Filipino tourists, were in Bosnia-Herzegovina when
measure invoking the use of force. Under Article 4 of the UN Charter, Country Y may hostilities erupted between the Serbs and the Moslems. Penniless and caught in the
use force against Country X as well as against the Ali Baba organization by authority crossfire, Reden, Jolan, and Andy, being retired generals, offered their services to the
of the UN Security Council. Moslems for a handsome, salary, which offer was accepted. When the Serbian
National Guard approached Sarajevo, the Moslem civilian population spontaneously
ALTERNATIVE ANSWER: Under the Security Council Resolution No. 1368, the took up arms to resist the invading troops. Not finding time to organize, the Moslems
terrorist attack of Ali Baba may be defined as a threat to peace, as it did in defining wore armbands to identify themselves, vowing to observe the laws and customs of
the September 11, 2001 attacks against the United States. The resolution authorizes war. The three Filipinos fought side by side with the Moslems. The Serbs prevailed
military and other actions to respond to terrorist attacks. However, the use of military resulting in the capture of Reden, Jolan and Andy, and part of the civilian fighting
force must be proportionate and intended for the purpose of detaining the persons force. a. Are Reden, Jolan and Andy considered combatants thus entitled to treatment
allegedly responsible for the crimes and to destroy military objectives used by the as prisoners of war? b. Are the captured civilians likewise prisoners of war? (1993
terrorists. The fundamental principles of international humanitarian law should also be BAR)
respected. Country Y cannot be granted sweeping discretionary powers that include A:
the power to decide what states are behind the terrorist organizations. It is for the a. Reden, Jolan and Andy are not combatants and are not entitled to treatment as
Security Council to decide whether force may be used against specific states and prisoners of war, Political Law 142 because they are mercenaries. Article 47 of the
under what conditions the force may be used. Protocol I to the Geneva Conventions of 1949 provides: "A Mercenary shall not have
the right to be combatant or a prisoner of war." Pursuant to Article 47 of Protocol I of
the Geneva Conventions of 1949, Reden Jolan, and Andy are mercenaries, because
they were recruited to fight in an armed conflict, they in fact took direct part in the
Q: A terrorist group called the Emerald Brigade is based in the State of Asyaland. The hostilities, they were motivated to take part in the hostilities essentially by the desire
government of Asyaland does not support the terrorist group, but being a poor for private gain and in fact was promised a handsome salary by the Moslems, they
country, is powerless to stop it. The Emerald Brigade launched an attack on the were neither nationals of a party to the conflict nor residents of territory controlled by
Philippines, firing two missiles that killed thousands of Filipinos. It then warned that a party to the conflict, they are not members of the armed forces of a party to the
more attacks were forthcoming. Through diplomatic channels, the Philippines conflict, and they were not sent by a state which is not a party to the conflict on
demanded that Asyaland stop the Emerald Brigade; otherwise, it will do whatever is official duty as members of its armed forces.
necessary to defend itself. Receiving reliable intelligence reports of another imminent b. The captured civilians are prisoners of war. Under Article 4 of the Geneva
attack by the Emerald Brigade, and it appearing that Asyaland was incapable of Convention relative to the Treatment of Prisoners of War, inhabitants of a non-
preventing the assault, the Philippines sent a crack commando team to Asyaland. The occupied territory, who on the approach of the enemy spontaneously take up arms to
team stayed only for a few hours in Asyaland, succeeded in killing the leaders and resist the invading forces, without having had time to form themselves into regular
most of the members of the Emerald Brigade, then immediately returned to the armed forces, provided they carry arms openly and respect the laws and customs of
Philippines. war, are considered prisoners of war if they fall into the power of the enemy. Law on
a. Was the Philippine action justified under the international law principle of "self- neutrality
defense"? Explain your answer. (2003 BAR)
b. As a consequence of the foregoing incident, Asyaland charges the Philippines with Q: Switzerland and Australia are outstanding examples of neutralized states a. What
violation of Article 2.4 of the United Nations Charter that prohibits "the threat or use are the characteristics of a neutralized state? b. Is neutrality synonymous with
of force against the territorial integrity or political independence of any State." The neutralization? If not, distinguish one from the other. (1988 BAR)
Philippines counters that its commando team neither took any territory nor interfered A:
in the political processes of Asyaland. Which contention is correct? Reasons. a. Whether simple or composite, a State is said to be neutralized where its
c. Assume that the commando team captured a member of the Emerald Brigade and independence and integrity are guaranteed by an international convention on the
brought him back to the Philippines. The Philippine Government insists that a special condition that such State obligates itself never to take up arms against any other State,
international tribunal should try the terrorist. On the other hand, the terrorist argues except for self-defense, or enter into such international obligations as would indirectly
that terrorism is not an international crime and, therefore, the municipal laws of the involve it in war. A State seeks neutralization where it is weak and does not wish to
Philippines, which recognize access of the accused to constitutional rights, should take an active part in international politics. The power that guarantee its neutralization
apply. Decidewith reasons. (2009 BAR) may be motivated either by balance of power considerations or by the desire to make
A: the weak state a buffer between the territories of the great powers (J. Salonga & P.
a. The Philippine action cannot be justified as self-defense. Self-defense is an Yap, Public International Law, pp. 76 (1966)).
act of State by reason of an armed attack by another State. The acts of terrorism b. Firstly, neutrality obtains only during war, whereas neutralization is a condition that
in this case were acts of private group and cannot be attributed to Asyaland, applies in peace or in war. Secondly, neutralization is a status created by means of
which does not support the Emerald brigade. Article 51 of the Charter of the treaty, whereas neutrality is a status created under international law, by means of a
United Nations has no applicability, because selfdefense in Article 51 stand on the part of a state not to side with any of the parties at war. Thirdly,
contemplates a response to a legitimate armed attack by a State against another neutrality is brought about by a unilateral declaration by the neutral State, while
State. The attack by the Emerald Brigade is an attack by a private group without neutralization cannot be effected by unilateral act, but must be recognized by other
authority or as an organ of Asyaland. States. (Id.)

b. The contention of Asyaland is correct. The Philippines violated Article 2(4)

of the Charter of the United Nations, which prohibits States from the threat or
use of force against the territorial integrity of any State.

c. The terrorist should be tried in the Philippines. Section 58 of RA 9372, the

Human Security Act, provides for its extraterritorial application to individual
persons who, although outside the territorial limits of the Philippines, commits
an act of terrorism directly against Filipino citizens where their citizenship was
a factor in the commission of the crime.

Q: In 1993, historians confirmed that during World War II, "comfort women" were
forced into serving the Japanese military. These women were either abducted or lured
by false promises of jobs as cooks or waitresses, and eventually forced against their
will to have sex with Japanese soldiers on a daily basis during the course of the war,
and often suffered from severe beatings and venereal diseases. The Japanese
government contends that the "comfort stations" were run as "onsite military brothels"
(or prostitution houses) by private operators, and not by the Japanese military. There
were many Filipina "comfort women." Name at least one basic principle or norm of
international humanitarian law that was violated by the Japanese military in the
treatment of the "comfort women." (2007 BAR)
A: The treatment of “comfort woman” by the Japanese military violated Article
XXVII of the Geneva Convention (IV), which provides that: “Women shall be
especially protected against any attack on their honor, in particular against rape,
enforced prostitution, or any form of indecent assault.”

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INTERNATIONAL HUMANITARIAN LAW

1. CATEGORIES OF ARMED CONFLICTS 3. PRINCIPLES OF INTERNATIONAL HUMANITARIAN LAW

a. INTERNATIONAL ARMED CONFLICTS

a. TREATMENT OF CIVILIANS
Definition: An international armed conflict occurs when one or more states
have recourse to armed force against another stateregardless of the reasons or For purposes of protection, civilians are further classified as:
the intensity of the confrontation. 1. Civilians who are victims of conflict in countries involved;
2. Civilians in territories of the enemy;
3. Civilians in occupied territories; and
b. INTERNAL OR NON-INTERNTIONAL ARMED CONFLICTS 4. Civilians internees.

Definition: This refers to conflicts between governmental forces and non- Martens Clause/Principle of Humanity- In cases not covered by other
governmental armed groups, or between such groups only. international agreements, civilians and combatants remain under the protection
and authority of the principles of international law derived from established
Article 1 develops Common Article 3. It applies to: custom, from the principles of humanity and from the dictates of public
1. All armed conflicts which take place in theterritory of a state conscience.
party;
2. Between its armed forces and dissidentarmed forces or other The Principle of Military Necessity- The belligerent may employ any amount
organized groups; of force to compel the complete submission of the enemy with the least
3. Which, under responsible command, exercise such control over a possible loss of lives, time and money.
part of itsterritory;
4. As to enable it to carry out sustained andconcerted military The Principle of Proportionality- The legal use of force whereby belligerents
operations and to implement the Protocol. must make sure that harm caused to civilians or civilian property is not
excessive in relation to the concrete and direct military advantage from an
Armed conflict does not include internal disturbances or tensions such as: anticipated attack or by an attack on military objective.
1. Riots;
2. Isolated and sporadic acts of violence; and
3. Other acts of a similar nature.

b. PRISONERS OF WAR
c. WAR OF NATIONAL LIBERATION
Under Art. 4, Geneva Convention (III), prisoners of war are persons belonging
Armed conflicts in which people are fighting against colonial domination and to one of the following categories:
alien occupation and against racist regimes in the exercise of their right to self- 1. Members of the armed forces of a party tothe conflict, including
determination (Protocol I, Art. 1(4)). militias or volunteercorps;
2. Militias or volunteer corps operating in oroutside their own
territory, even if such territory is occupied, provided:
a. They are being commanded by a person responsible
for his subordinates;
2. CORE INTERNATIONAL OBLIGATIONS OF STATES b. Have a fixed distinctive sign recognizable at a
distance;
In general, IHL defines the following obligations: c. Carry arms openly; and
1. Parties to an armed conflict, together withtheir armed forces, do d. Conduct their operations in accordance with the
not have unlimited choice of methods or means of warfare. They laws and customs of war.
are prohibited from employing weapons or means of warfare that 3. Members of regular armed forces who profess allegiance to a
cause unnecessary damage or excessive suffering. government or authority not recognized by the detaining power;
2. Parties to an armed conflict shall, at alltimes, distinguish between 4. Civilians who accompany the armed forces, provided that they
civilian population and the combatants (principle of distinction). have received authorization from the armed forces which they
Civilians shall be spared from military attacks which shall be accompany;
directed only against military objectives. 5. Members of crews of merchant marine and the crews of civil
3. Persons hors de combat shall be protected and treated humanely aircraft of the parties to the conflict;
without any adverse distinction. Their right to life and physical 6. Inhabitants of a non-occupied territory who on the approach of
and moral integrity shall be respected. the enemy spontaneously take up arms to resist the invading
4. It is prohibited to kill or injure an enemy who is hors de combat forces, without having had time to form themselves into regular
or who surrenders. armed units, provided they carry arms openly and respect the
5. The wounded and the sick shall be protected and cared for by the laws and customs of war; and
party to the conflict which has them in its power. Protection shall
also apply to medical personnel, establishments, transports and Rights of prisoners of war
material. 1. To be treated humanely;
6. Combatants and civilians who are captured by authority of the 2. Not to be subject to torture;
party to a dispute are entitled to respect for their right to life, 3. To be allowed to communicate with theirfamilies;
dignity, conviction, and other personal rights. They shall be 4. To receive food, clothing, religious articles,and medicine;
protected against acts of violence or reprisals 5. To bare minimum of information;
6. To keep personal belongings;
7. To proper burial;
8. To be grouped according to nationality;
9. To the establishment of an informedbureau; and
10. To repatriation for sick and wounded (1949 Geneva Convention)

4. LAW ON NEUTRALITY

It is the law governing a country’s abstention from participating in a conflict or

aiding a participant of such conflict, and the duty of participants to refrain from
violating the territory, seizing the possession, or hampering the peaceful
commerce of the neutral countries.

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LAW OF THE SEA

Definition- The United Nations Convention on Law of the Sea (UNCLOS) is the
body of treaty rules and customary norms governing the use of the sea, the Q: Under the United Nations Convention on the Law of the Sea (UNCLOS), what are
exploitation of its resources, and the exercise of jurisdiction over maritime regimes. the rights of the Philippines within the following areas? a. Contiguous zone b.
Exclusive Economic zone (2019 BAR)
It is the branch of public international law which regulates the relations of states with A:
respect to the use of the oceans. a. The Contiguous Zone is an intermediary zone between the territorial sea and
the high seas extending enforcement jurisdiction of the coastal state to a
Nature of the UNCLOS treaty- UNCLOS III has nothing to do with the acquisition maximum of 24 nautical miles from baselines for the purposes of preventing or
(or loss) of territory. It is a multilateral treaty regulating, among others, sea-use rights punishing violations of customs, fiscal, immigration or sanitary (and thus
over maritime zones. residual national security) legislation.
b. Under the EEZ, the coastal state retains exclusive sovereignty over exploring,
exploiting and conserving all natural resources. Under Article 60 of the United
Nations Convention on the Law of the Sea (UNCLOS). It also has the right to
1. BASELINES construct and authorize and regulate the construction, operation and use of
artificial islands, installations and structures for the purposes provided for in
The line from which a breadth of the territorial sea and other maritime zones, Article 56 and other economic purposes, installations and structures which may
such as the contiguous zone and the exclusive economic zone, is measured. Its interfere with the exercise of the rights of the coastal State in the zone; it shall
purpose is to determine the starting point to begin measuring maritime zones also have the exclusive jurisdiction over such artificial islands, installations, and
boundary of the coastal state. structures, including jurisdiction with regard to customs, fiscal, health, safety,
and immigration laws and regulations.
The GR is that there are 2 types of Baselines:
1. Normal Baseline: where the territorial seais the low-water line along Q: State Epsilon, during peace time, has allowed foreign ships innocent passage
the coast as marked on large-scale charts officiallyrecognized by the through Mantranas Strait, a strait within Epsilon's territorial sea which has been used
coastal state (Art. 5, UNCLOS). by foreign ships for international navigation. Such passage enabled the said ships to
2. Straight Baseline: where the coastline is deeply indented or cut into, traverse the strait between one part of the high seas to another. On June 7, 1997, a
or if there is a fringe of islands along the coast in its immediate warship of State Beta passed through the abovenamed strait. Instead of passing
vicinity, the method of straight lines joining the appropriate points may through continuously and expeditiously, the ship delayed its passage to render
be employed in drawing the baseline from which the breadth of the assistance to a ship of State Gamma which was distressed with no one nearby to
territorial sea is measured (Art. 7, UNCLOS). assist. When confronted by Epsilon about the delay, Beta explained that the delay was
due to force majeure in conformity with the provision of Article 18(2) of the 1982
Special Baseline for Archipelagic States Convention on the Law of the Sea (UNCLOS). Seven months later, Epsilon
1. Straight baselines join the outermost points of the outermost islands suspended the right of innocent passage of warships through Mantranas Strait without
and drying reefs of an archipelago, provided that within such baselines giving any reason therefor. Subsequently, another warship of Beta passed through the
are included the main islands and an area in which the ratio of the said strait, and was fired upon by Epsilon's coastal battery. Beta protested the
water to the area of the land, including atolls, is between 1 to 1 and 9 to aforesaid act of Epsilon drawing attention to the existing customary international law
2. The breadth of the territorial sea(TS), the contiguous zone (CZ), and that the regime of innocent passage (even of transit passage) is nonsuspendable.
the exclusive economic zone (EEZ), are measured from the straight Epsilon countered that Mantranas Strait is not a necessary route, there being another
archipelagic baselines suitable alternative route. Resolve the above-mentioned controversy. Explain your
answer. (1999 BAR)
A: Assuming that Epsilon and Beta are parties to the UNCLOS, the controversy
maybe resolved as follows: Under the UNCLOS, warships enjoy a right of
innocent passage. It appearing that the portion of Epsilon's territorial sea in
question is a strait used for international navigation, Epsilon has no right under
international law to suspend the right of innocent passage. Article 45(2) of the
2. ARCHIPELAGIC STATES UNCLOS is clear in providing that there shall be no suspension of innocent
passage through straits used for international navigation. On the assumption that
a. STRAIGHT ARCHIPELAGIC BASELINES the straits in question is not used for international navigation, still the
suspension of innocent passage by Epsilon cannot be effective because
Where the coastline is deeply indented or cut into, or if there is a fringe of suspension is required under international law to be duly published before it can
islands along the coast in its immediate vicinity, the method of straight lines take effect. There being no publication prior to the suspension of innocent
joining the appropriate points may be employed in drawing the baseline from passage by Beta's warship, Epsilon's act acquires no validity. Moreover,
which the breadth of the territorial sea is measured (Art. 7, UNCLOS). Epsilon's suspension of innocent passage may not be valid for the reason that
there is no showing that it is essential for the protection of its security. The
Special Baseline for Archipelagic States actuation of Beta's warship in resorting to delayed passage is for cause
1. Straight baselines join the outermost points of the outermost islands recognized by the UNCLOS as excusable, i.e., for the purpose of rendering
and drying reefs of an archipelago, provided that within such baselines assistance to persons or ship in distress, as provided in Article 18(2) of the
are included the main islands and an area in which the ratio of the UNCLOS. Hence, Beta's warship complied with the international law norms on
water to the area of the land, including atolls, is between 1 to 1 and 9 to right of innocent passage.
2. The breadth of the territorial sea(TS), the contiguous zone (CZ), and
the exclusive economic zone (EEZ), are measured from the straight
archipelagic baselines

b. ARCHIPELAGIC WATERS

These are the waters enclosed by the straight archipelagic baselines, regardless
of their depth or distance from the coast (Art 49(1), UNCLOS). Q: En route to the tuna fishing grounds in the Pacific Ocean, a vessel registered in
Country TW entered the Balintang Channel north of Babuyan Island and with special
They are subject to the sovereignty of the archipelagic state, but subject to the hooks and nets dragged up red corals found near Batanes. By international convention
right of innocent passage for the ships of all states. certain corals are protected species, just before the vessel reached the high seas, the
Coast Guard patrol intercepted the vessel and seized its cargo including tuna. The
c. ARCHIPELAGIC SEA LANES PASSAGE master of the vessel and the owner of the cargo protested, claiming the rights of transit
passage and innocent passage, and sought recovery of the cargo and the release of the
Under Art. 1 of the 1987 Constitution, the archipelagic waters of the Philippines ship. Is the claim meritorious or not? Reason briefly. (2004 BAR)
are characterized as forming part of “the internal waters of the Philippines.” A: The claim of innocent passage is not meritorious. While the vessel has the right of
However, under the UNCLOS, archipelagic waters consist mainly of the innocent passage, it should not commit a violation of any international convention.
“waters around, between, and connecting the islands of the archipelago, The vessel did not merely navigate through the territorial sea, it also dragged red
regardless of breadth or dimension.” corals in violation of the international convention which protected the red corals. This
is prejudicial to the good order of the Philippines (Article 19(2) of the Convention on
Moreover, under Art. 47, UNCLOS, it is not mandatory upon concerned states the Law of the Sea).
to declare themselves as archipelagic states. The Philippines did so under its
new baselines law, R.A. No. 9522, which was upheld as constitutional. Q: Distinguish briefly but clearly between: The territorial sea and the internal waters
of the Philippines. (2004 BAR)
d. REGIME OF ISLANDS A: Territorial sea is an adjacent belt of sea with a breadth of twelve nautical miles
measured from the baselines of a state and over which the state has sovereignty
(Articles 2 and 3 of the Convention 336on the Law of the Sea). Ship of all states enjoy
the right of innocent passage through the territorial sea (Article 14 of the Convention
on the Law of the Sea). Under Section 1, Article I of the 1987 Constitution, the
3. INTERNAL WATERS internal waters of the Philippines consist of the waters around, between and
connecting the islands of the Philippine Archipelago, regardless of their breadth and
These are waters of lakes, rivers, and bays landward of the baseline of the dimensions, including the waters in bays, rivers and lakes. No right of innocent
territorial sea. Waters on the landward side of the baseline of the territorial sea passage for foreign vessels exists in the case of internal waters (Harris, Cases and
also form part of the internal waters of the coastal state. However, in case of Materials on International Law, 5th ed., 1998). Internal waters are the waters on the
archipelagic states, waters landward of the baseline other than those rivers, bays landward side of baselines from which the breadth of the territorial sea is calculated
and lakes, are archipelagic waters (Art. 8(1), UNCLOS). (Brownlie, Principles of Public International Law, 4th ed., 1990).

They are considered as part of the state’s land territory and are subject to full
sovereignty.

4
4. TERRITORIAL SEA 7. EXCLUSIVE ECONOMIC ZONE

These waters stretch up to12 miles from the baseline on the seaward The exclusive economic zone (EEZ) is the stretch of area up to 200 miles from the
direction. They are subject to the jurisdiction of the coastal state, which baselines. Within this zone, a State may REGULATEnon-living and living
jurisdiction almost approximates that which is exercised over land territory. resources, other economic resources, artificial installations, scientific research,
and pollution control.
Rights that are available in Territorial Sea
1. Innocent Passage: refers to navigation through the territorial sea The extent of the state’s rights in the EEZ- The UNCLOS gives the coastal State
without entering internal waters, going to internal waters, or coming sovereign rights over all economic resources of the sea, seabed, and subsoil in an area
from internal waters and making forthe high seas. extending not more than 200 nautical miles beyond the baseline from which the
territorial sea is measured (Arts. 55 and 57, UNCLOS).
This is subject to two limitations:
a. It must involve only acts that are required by navigation Rights of the coastal state in the EEZ
or by distress and 1. Establish and use of artificial islands, installations and structures;
b. Not prejudice the peace, security, or good order of the 2. Conduct scientific research;
coastal state. 3. Preserve and protect its marineenvironment;
4. Board and inspect a ship;
2. Transit Passage: refers to the right to exercise freedom of navigation 5. Arrest a ship and its crew;
and over flight solely for the purpose of continuous and expeditious 6. Institute judicial proceedings against them.
transit through the straights used for international navigation. The right
cannot be unilaterally suspended by the coastal state. In detention of foreign vessels, the coastal state has the duty to promptly notify the
flag state of the action taken

Rights of the non-coastal state- Under Art. 58, UNCLOS, all States enjoy the
Q: Describe the following maritime regimes under UNCLOS: a. Territorial sea freedom of navigation, over flight, and laying of submarine cables and pipelines
b. Contiguous zone c. Exclusive economic zone d. Continental shelf (2015 in the EEZ of coastal states
BAR)
Coastal States have the primary responsibility to utilize, manage and conserve the
A: Under the provisions of UNCLOS III: living resources within their EEZ (i.e. ensuring that living resources are not
a. The territorial waters of an archipelagic state shall extend up to 12 nautical endangered by overexploitation), and the duty to promote optimum utilization of
miles from its baselines over which the State exercises jurisdictional control. living resources by determining allowable catch.
b. Its contiguous zone shall extend up to 24 nautical miles over which the State
exercises control as is necessary to prevent infringement of its customs, fiscal, There is a duty to share catch if the maximum allowable catch is determined to be
immigration, or sanitary laws within its territory. above the capacity of the State to harvest.
c. Its exclusive economic zone shall extend up to 200 nautical miles from its
baselines over which the State exercises sovereignty over all the exploration, The State shall give other States access to the surplus by means of arrangements
exploitation, or conservation and managing of the economic natural resources, allowable under the UNCLOS. The UNCLOS, however, does not specify the method
whether living or non- living. for determining “allowable catch.”
d. Its continental shelf “comprises the seabed and subsoil of the submarine areas
that extend beyond its territorial sea throughout Political Law 144 the natural The right of geographically disadvantaged states or land locked states
prolongation of its land territory to the outer edge of the continental margin or GR: These states have the right to participate, on equitable basis, in the exploitation
to a distance of 200 nautical miles from the baselines from which the breadth of of the surplus of the living resources in the EEZ of coastal states of the same sub
the territorial sea is measured where the outer edge of the continental margin region or region.
does not extend up to that distance.’ XPN: A coastal state whose economy is overwhelmingly dependent on the
exploitation of its EEZ, however, is not required to share its resources.

Q: In the desire to improve the fishing methods of the fishermen, the Bureau of
Fisheries, with the approval of the President, entered into a memorandum of
agreement to allow Thai fishermen to fish within 200 miles from the Philippine sea
5. CONTIGUOUS ZONE coasts on the condition that Filipino fishermen be allowed to use Thai fishing
equipment and vessels, and to learn modern technology in fishing and canning. Is the
The contiguous zone is that which is contiguous to its territorial sea. It may not agreement valid? (1994 BAR)
extend beyond 24 nautical miles from the baselines from which the breadth A: NO, the President cannot authorize the Bureau of Fisheries to enter into a
of the territorial sea is measured. memorandum of agreement allowing Thai fishermen to fish within the exclusive
economic zone of the Philippines, because the Constitution reserves to Filipino
The powers of the Coastal state over the Contiguous Zone include: citizens the use and enjoyment of the exclusive economic zone of the Philippines.
1. Control to prevent infringement of itscustoms, fiscal, immigration, or
sanitary laws and regulations within its territory or territorial sea; and Q: Explain exclusive economic zone. (2000 BAR)
2. Control to punish infringement of the above laws and regulations A: The exclusive economic zone under the Convention on the Law of the Sea is an
committed within its territory or territorial sea. area beyond and adjacent to the territorial sea, which shall not extend beyond 200
nautical miles from the baselines from which the territorial sea is measured. The
coastal State has in the exclusive economic zone: a. Sovereign rights for the purpose
of exploring and exploiting, conserving and managing the natural resources, whether
living or non-living, if the waters superjacent to the sea-bed and of the seabed and
subsoil, and with regard to other activities for the economic exploitation and
exploration of the zone, such as the production of energy from the water, currents and
6. CONTINENTAL SHELF winds; b. Jurisdiction as provided in the relevant provisions of the Convention with
regard to: i. the establishment and use of artificial islands, installations and structures;
Extended Continental Shelf- It is the seabed and subsoil of the submarine areas ii. marine scientific research; iii. and the protection and preservation of the marine
extending beyond the territorial seaof the coastal state throughout the natural environment; c. Other rights and duties provided for in the Convention (Article 56 of
prolongation of its land territory up to: the Convention of the Law of the Sea.)
1. The outer edge of the continental margin; or
2. A distance of 200 nautical miles from the baselines of the territorial sea Q: Distinguish briefly but clearly between: the contiguous zone and the exclusive
where the outer edge of the continental margin does not extend up to economic zone. (2004 BAR)
that distance. A: CONTIGUOUS ZONE is a zone contiguous to the territorial sea and extends up to
twelve nautical miles from the territorial sea and over which the coastal state may
Continental Margin- Submerged prolongation of the land mass of the continental exercise control necessary to prevent infringement of its customs, fiscal, immigration
state, consisting of the continental shelf proper, the continental slope, and the or sanitary laws and regulations within its territory or territorial sea. (Article 33 of the
continental rise Convention on the Law of the Sea) The EXCLUSIVE ECONOMIC ZONE is a zone
extending up to 200 nautical miles from the baselines of a state over which the coastal
Continental Shelf state has sovereign rights for the purpose of exploring and exploiting, conserving and
1. The juridical or legal continental shelf covers the area until 200 managing the natural resources, whether living or nonliving, of the waters superjacent
nautical miles from baselines. to the seabed and of the seabed and subsoil, and with regard to other activities for the
2. The extended continental shelf covers the area from the 200-mile mark economic exploitation and exploration of the zone. (Articles 56 and 57 of the
to 350 nautical miles from the baselines depending on geomorphologic Convention on the Law of the Sea)
or geological data and information.
3. The continental shelf shall not extend beyond 350 nautical miles from
the baseline of the territorial sea, or 100 nautical miles from the 2,500- Q: Enumerate the rights of the coastal State in the exclusive economic zone. (2005
meter isobath (i.e. the point where the waters are 2,500 meters deep). BAR)
A: In the EXCLUSIVE ECONOMIC ZONE, the coastal State has sovereign rights for
Exclusive Rights of the Coastal State in the Continental Shelf: the purpose of exploring and exploiting, conserving and managing the natural
1. Sovereign rights with respect to theexploration and exploitation of its resources, whether living or non-living, of the waters superjacent to the seabed and of
natural resources, including the mineral and other non-living resources the seabed and its subsoil, and with regard to other activities for the economic
of the seabed and subsoil together with living organisms belonging to exploitation and exploration of the zone, such as the production of energy from the
the sedentary species. water, currents and winds in an area not extending more than 200 nautical miles
2. The coastal state has the exclusive right to authorize and regulate oil- beyond the baseline from which the territorial sea is measured. Other rights include
drilling on its continental shelf. the production of energy from the water, currents and winds, the establishment and
use of artificial islands, installations and structures, marine scientific research and the
4BLUE 95 NOTE: “Exclusive” means that if the coastal does not explore or exploit protection and preservation of the marine environment. (Art. 56, U.N. Convention on
its resources, no other state can without the State’s consent. the Law of the Sea)

5
8. INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA

The ITLOS is an independent judicial body established by the Third United Nations
Convention on the Law of the Sea to adjudicate disputes arising out of the
interpretation and application of the convention.

The settlement of Disputes

1. Peaceful Settlement of Disputes: UnderPar. 3, Art. 2, UN Charter,
States have the duty to settle disputes by peaceful means. This
obligation extends to State parties of the UNCLOS, underscoring the
right of the parties to resort to peaceful means of their own choice on
which they can agree any time.
2. Compulsory Settlement of Disputes: Where no successful settlement
can be achieved, or if the parties are unable to agree on the means of
settlement of a dispute concerning the application of UNCLOS, such
dispute may be governed by the principle of compulsory settlement,
where procedures entail binding decisions.

The parties may choose, through a written revocable and replaceable declaration, to
submit the dispute to the following:
1. ITLOS;
2. ICJ;
3. Arbitral tribunal; or
4. Special arbitral tribunal.

Jurisdiction of the ITLOS

1. Any dispute submitted to it concerning the application or interpretation
of UNCLOS; or
2. Any dispute concerning the interpretation or application of an
internationalagreement:
a. Related to the purposes of theUNCLOS; or
b. When such dispute is submitted toit in accordance with
that agreement

Sources of Law to be applied in ITLOS:

The court or tribunal shall apply the UNCLOS and other rules of international law not
incompatible with the UNCLOS (Art. 293, UNCLOS). It may also decide a case ex
aequo et bono (what is equitable and just) if the parties so agree.

INTERNATIONAL ENVIRONMENTAL LAW

1. PRINCIPLE 21 OF STOCKHOLM DECLARATION

Sic UtereTuo Ut Alienum Non Laedas or the No-Harm Principle

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 (Principle 21,
Stockholm Declaration).

2. PRECAUTIONARY PRINCIPLE

Where there are threats of serious or irreversible damage, lack of full

scientific certainty shall not be used as a reason for postponing cost-
effective measures to prevent environmental degradation.

When it is uncertain as to the consequence of the proposed activity to the

environment, doubts should be resolved on the side of caution by taking
measures to prevent or avoid environmental degradation(Principle 15, Rio
Declaration).