Submitted to the Senate Committee on National Defense and Security, Peace, Unification and Reconciliation, Committees on Foreign Relations, Public Works and Finance and Special Committee on Philippine Maritime and Admiralty Zones that are conducting public hearings on the West Philippine Sea by the International Law and Relations Society of the Philippines (ISIP), an intellectual society composed of retired Chief Justice of the Supreme Court Reynato S. Puno, retired CG Admiral Joel S. Garcia, Dr. Melissa Loja, Prof. Romel Bagares and Atty. Al Soriano.
Fourth of a series
The freedoms available in disputed or undisputed waters beyond the limit of the 12 nautical miles territorial sea of a state are discussed in the next section.
2.3 Specific activities
In international waters beyond the 12-nautical mile limit of its territorial sea, a coastal state does not have territorial sovereignty or prescriptive and enforcement jurisdiction. That is to say, the coastal state has no right or authority to enforce its constitutional, administrative, criminal, civil, tax, commercial and labor laws within its EEZ, continental shelf, extended continental shelf, or on the high seas and the Area. Its law making and law enforcement authority is confined to matters relating to its exercise of sovereign rights in the CZ/EEZ, continental shelf and extended CS, such as on fisheries and offshore oil and gas.
In disputed or overlapping or undelimited EEZ/CS/eCS, the exercise of conflicting sovereign rights, specifically the rule of capture, has led to naval stand-off, if not armed conflict. Oftentimes, coastal states exercise their conflicting sovereign rights within the framework of cooperation agreements.
On the other hand, all states enjoy High Seas (HS) freedoms for peaceful purposes, namely, freedom of navigation; freedom of overflight; freedom to lay submarine cables and pipelines; freedom to construct artificial islands and other installations; freedom of fishing; and freedom of scientific research. Under UNCLOS, in its CZ, EEZ and CS/eCS, the coastal state may, while exercising its sovereign rights, regulate enjoyment of these freedoms by other states. Under other conventions, the freedom of overflight over the EEZ of a coastal state may be subject to the requirement of prior identification.
The following table compares the two regimes:
Moreover, the sovereign rights of a coastal state vis-à-vis the freedoms of the high seas continue to be available even in disputed EEZ or CS/eCS. Hence, as occupant of Pag-asa Island or Thitu Island, the Philippines may exercise the rights of territorial sovereignty over the island itself and its territorial sea. At the same time, the Philippines may exercise its limited sovereign rights in the Philippine EEZ provided this is beyond the territorial seas of rocks that are disputed but occupied by the other claimant states.
During peacetime, the law enforcement authority of the coastal state in the CZ, EEZ and CS/eCS is limited to the exercise of its economic or sovereign rights. This role is vested primarily in its law enforcement agencies, which may not use lethal force, except in self-defense. At the same time, said coastal state, as all other states, enjoy freedom of the high seas, specifically in its own CZ, EEZ, CS/eCS or those of other coastal states and in the waters and air space that are beyond the national jurisdiction of any state. Thus, in said high seas and the superjacent airspace, its military forces and their vessels and aircraft may exercise freedom of navigation and overflight, such as the conduct of naval patrol and fly-by, provided the same are for peaceful purposes.
In bears stressing that the suppression of international maritime crimes, such as piracy, is the duty of every state, “all states have the right and duty to protect their vessels against piracy at sea including in the exclusive economic zone of a coastal.” In The Enrica Lexie Incident, Indian fishermen plying the EEZ of India were mistaken for pirates and shot and killed by Italian military personnel on board an Italian vessel. ITLOS held that said incident was not an impairment of the sovereign rights of India to fish in its EEZ as Italy also had a right to protect its vessels against piracy in said waters.
It is also underscored that the foregoing freedoms of navigation and overflight are available to a state, such as China, even if the latter is involved in a territorial or maritime dispute with another state, such as the Philippines, provided the same is exercised in the territories, maritime zones and air spaces that are not disputed between them. Conversely, the Philippines enjoys freedom of navigation and overflight in the territories, maritime zones and air spaces of China that are not disputed between them. Any restriction on such freedom of navigation or overflight by one against the other would be in violation of Article 24 of UNCLOS proscribing discriminatory regulation or restriction of freedom of navigation and overflight.
However, freedom of navigation and overflight does not engender freedom of military or paramilitary presence by one state on the territory or territorial extension of another state. The presence of the military or paramilitary forces of a foreign state on the territory of another state constitute a violation of the latter’s territorial sovereignty and territorial integrity, unless such presence has been invited.
Nonetheless, during wartime, a belligerent state may engage in belligerent acts at sea, such as by establishing a naval blockade, even in the EEZ of a neutral state.
In sum, it is important to distinguish between military forces, vessels and aircraft vis-à-vis law enforcement forces, vessels and aircraft. Their distinction has legal significance in terms of their allowable activities during peacetime or wartime, and within disputed or undisputed territorial, maritime and air spaces.
The regime applicable to the CCG or PCG in the SCS would depend on their exact organizational status, mandate, and the level of force they may employ.
To be continued