Caso a Caso Periodismo de Investigación
As a member of the World Trade Organization (WTO), the Philippines has fulfilled its obligations under international trade agreements and has upheld its rights, including through participation in dispute settlement procedures within the Organization. At the time of writing (January 2019), the Philippines is party to 27 pending WTO cases, including five cases in which it acts as complainants, in particular against Brazil,27 the United States28, Australia29 and Thailand.30 The Philippines in particular has referred its maritime disputes with China in the West Philippine Sea and South China Sea to an arbitration tribunal. international. As mentioned above, the South China Sea arbitration was initiated by the Philippines in January 2013 under Part XV and Annex VII of UNCLOS and had the Permanent Court of Arbitration as its registry.20 The arbitration involved the characterization of certain maritime characteristics and Chinese actions in the maritime domain concerned. SPECIAL QUESTIONS OF INTERNATIONAL LAW (Law of the Sea) FREEDOM OF THE SEA A ship on the high seas enjoys freedom of navigation. The United Nations Convention on the Law of the Sea reinforces this freedom by subjecting such a ship to the exclusive jurisdiction of the flag State. • For example, a ship may be boarded at any time by a warship or by a government ship; • Ships engaged in piracy, slavery and drug taxes are also not allowed to resist inspection and prosecution because of freedom on the high seas; • The interest of the international community in these evils is protected by appropriate treaty provisions. Two concepts: – mare liberum or the sea, which is kept free and open for all purposes; – Mare Clausum or the sea appropriated by some nations. ● Who should control the oceans and for what purposes? ● How to reconcile the general interest (advocating the freedom of the sea) and the particular interest of coastal States (advocating the extension of their authority to at least one adjacent belt of the sea)? UNCLOS The law of the sea is one of the oldest disciplines of international law.
These are first and foremost the rules that bind States in their international maritime relations, which are essentially shaped by the political, geographical and economic relations of States. Types of waters recognized in the UNCLOS territorial sea – These are waters adjacent to the coast or to a State, with the exception of internal waters in bays and gulfs that are not part of the high seas. The Convention establishes the maximum breadth of the territorial sea that a State may claim off the baseline. • Innocent passage – The Convention confirms the right of innocent passage through the territorial sea, which is enshrined in the international practice of all ships. It determines the activities of ships that are not considered innocent. The regime of peaceful passage does not include the right to fly over or pass underwater. • Transit passage – The Convention also confirms the established right of all ships and aircraft freely to cross the territorial sea in normal mode through, over and below the territorial sea when transiting through an international strait without an offshore route. Innocent passage through the territorial sea – • Transit is harmless as long as it does not interfere with the peace, good order or security of the coastal State. Archipelagic waters – All waters within the baselines of the archipelago are waters of the archipelago.
The archipelagic State shall exercise sovereignty over these waters in accordance with Part IV of the Convention. • Right of innocent passage – Ships of all States enjoy the right of innocent passage through the waters of the archipelago. • Archipelago-sea passage – An archipelag-sea State may designate maritime routes suitable for the continuous and rapid passage of foreign vessels through or through the waters of its archipelago and the adjacent territorial sea. Contiguous zone – The coastal State may exercise such control as may be necessary to: (1) prevent violations of its customs, fiscal, immigration or health laws and regulations in its territory or territorial sea; (2) To punish violations of the above-mentioned laws and regulations committed in its territory or territorial sea. ● It shall not exceed 24 NM from the baselines from which the breadth of the territorial sea is measured. Exclusive Economic Zone (EEZ) – The exclusive economic zone (EEZ) is the zone that extends off the outer limit of the territorial sea up to 200 miles from the baseline. ● In the EEZ, the coastal State: sovereign rights for the exploration and exploitation, conservation and management of natural resources, whether living or non-living, of the waters adjacent to the seabed and the seabed and its subsoil, as well as in relation to other activities of economic exploitation and exploration of the area, such as energy production from water, currents and winds; Responsibility for: • the construction and use of artificial islands, installations and structures; • Maritime scientific research; • protection and conservation of the marine environment; Straits used for international navigation – are those that lie between an area of the high seas area and another part of the high seas or an exclusive economic zone through which all ships and aircraft have the right of passage. High seas – are all parts of the sea that are not included in the exclusive economic zone, territorial sea or internal waters of a State or in the waters of the archipelago of an archipelagic State. It is open to all States.
CONTINENTAL SHELF ● The continental shelf comprises the seabed and subsoil of the submarine area extending beyond the territorial sea during the natural extension of its terrestrial zone 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, if the outer edge of the continental margin does not extend to that distance. Coastal States have the right to exploit the mineral resources of their continental shelf, but must pay a small commission to other States through the International Seabed Authority (ISBA) from the proceeds of the exploitation of resources located more than 200 miles from the coast. ● The jurisdiction of coastal States over the continental shelf does not affect the legal status of the overlying waters. Thus, beyond the territorial sea, the freedoms of navigation, overflight and other uses of the seas that fall within these freedoms under international law, including the right to lay submarine cables and pipelines, are the same on a continental shelf as on the high seas. The dispute settlement provisions of Part XV of the Convention are referred to as dispute settlement; – In addition, annexes V (Conciliation), VI (ICLOS), VII (Arbitration) and VIII (Special arbitration) refer to the specific mechanisms proposed in Part XV; – It should be noted that, as an instrument of the United Nations, the Convention is always imbued with the principles and norms deriving from the Charter of the United Nations and any other applicable instrument. – Most, if not all, States parties to the Convention are also Members of the United Nations and, in accordance with Article 103 of the Charter, the Charter takes precedence over all other contractual obligations. – Rating: 3. United Nations Conference on the Law of the Sea – the settlement of any provision of the Convention referred to in Part XV and the 4 Annexes applies only as a means of settling disputes that may arise from the interpretation and application of the Convention. 4 Core objectives guiding the Part XV process: 1. Dispute settlement should be based on law in order to avoid disputes being resolved by political and economic pressure from the most powerful states; 2.The interpretation of the Convention would be as uniform as possible through compulsory dispute settlement; 3.Exceptions would be carefully defined to strengthen the mandatory nature of the settlement regime; 4.The dispute settlement system should be an integral part of the Convention and not included as an optional protocol. Key features of Part XV: 1.It is a subsidiary mechanism for the settlement of disputes between the parties.
First, it allows parties to settle their differences peacefully by settling their own choice; 2.It requires the parties to exchange views, which promotes a negotiated solution; 3.When applied, Part XV provides for any escalation procedure, beginning with diplomatic settlements, followed (if appealed) by mediation and the subsequent conclusion of binding judicial proceedings (if the matter is not excluded by the Convention or by a declaration).