Not all the maritime zones of the 1982 United Nations Convention on the Law of the Sea (LOSC) are automatically ascribed to a State.

The LOSC provides, among others, the different maritime zones as we know them. Among these are the Territorial Sea, Contiguous Zone, Continental Shelf and the Exclusive Economic Zone (EEZ). It is important to note – a point often overlooked – that not all of these zones are automatically generated in favour of a State. Thus, where it is necessary, a claim should be made if a State desires to have the relevant zone and be able to exercise the powers in relation to said zone.

As regards the Territorial Sea, it was held in the Grisbadarna case (1909) that ‘maritime territory is an essential appurtenance of land territory’. Thus, as Judge McNair stated in the Anglo-Norwegian Fisheries case (1951), ‘The possession of this territory is not optional, not dependent upon the will of the State, but compulsory.’ This idea would be echoed by Judge Fitzmaurice in the Fisheries Jurisdiction case (1973) as he discussed the responsibilities in relation to maintaining such maritime territory.

As regards the Contiguous Zone where limited jurisdiction is granted unto a coastal State, a claim to such zone is necessary. Professors Churchill and Lowe in fact explain that ‘[…] the contiguous zone is not automatically ascribed to the coastal State’.

As regards the Continental Shelf, the North Sea Continental Shelf cases (1969) teach that it constitutes a natural prolongation of the land territory such that the rights of a coastal State in respect of such area exist ipso facto and ab initio. Such rights are inherent to the State.

As regards the EEZ, that a claim to said zone is necessary is expressed in the Judgment in the Libya/Malta case (1985) where it is stated that ‘although there can be a continental shelf where there is no exclusive economic zone, there cannot be an exclusive economic zone without a corresponding continental shelf.’ This court dictum explains that the Continental Shelf, but not the EEZ, is automatically ascribed to a State.

A review of Philippine legislation shows that the Philippine State does not have a claim to a Contiguous Zone where ‘the coastal State may exercise the control necessary to [] prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; [and to] punish infringement of [such] laws and regulations committed within its territory or territorial sea.’ (Article 33 para. 1, LOSC).

Herein, the contributor believes that this matter is perhaps something that the government should look into. Thus, the pertinent communication, reproduced hereunder, has been respectfully made to the relevant government office for its consideration.

30 May 2019

Sir:

I wish to respectfully refer to your office a matter concerning the Contiguous Zone. As we know in international law, the Contiguous Zone, like the Exclusive Economic Zone, is dependent upon an express claim by the coastal state of such zone. This idea can be contrasted with the concept of the Continental Shelf – that the rights of a coastal state in respect hereof “exist ipso facto and ab initio”, following the judgement of the International Court of Justice in the 1969 North Sea Continental Shelf cases. Certainly, such concept is already a conventional rule embodied in Part VI of the 1982 United Nations Convention on the Law of the Sea.

Whilst we have Presidential Decree No. 1599 of 11 June 1978 in regard to our claim to an Exclusive Economic Zone, there appears to be no specific proclamation or legislation on our claim to a Contiguous Zone. The mention of a Contiguous Zone in Republic Act No. 7942, in my humble opinion, might not suffice under international law, especially if we take into account the fact that it fails to make reference to the particular and limited law enforcement powers granted onto a coastal state under the Contiguous Zone regime. In fact, the Summary of Claims published online by the United Nations-Division on Ocean Affairs and Law of the Sea (DOALOS) does not indicate a Philippine Contiguous Zone.

In view of the foregoing, if it is the desire of the Philippine State to have a Contiguous Zone and to be able to exercise the control necessary to prevent and punish violations of our customs, fiscal, immigration and sanitary laws beyond our territorial sea, it is my humble submission that an express claim or declaration should be made in regard hereto. Subsequently, it is suggested that the pertinent communication be made to the DOALOS so that such claim will be recorded and reflected in their database.

I thank you for your consideration of this correspondence. With all my best wishes for you and the country, I am

Very truly yours,

(Sgd.) Julius A. Yano

12 July 2019

Sir:

I thank you for your 18-June-2019 letter in relation to which I am submitting this reply.

In view of your pleasant advice, there is no doubt that any issue on the supposed Contiguous Zone of the Philippines is properly addressed by your office. In any event, please allow me to provide the following comments as further contributions to the discourse:

A scrutiny of copious texts on the Contiguous Zone reveals that the ‘declaration’ referred to by some commentators in relation to the Contiguous Zone is in the sense of ‘publication’ for which there is indeed no requirement under international law. Such ‘declaration’, however, should not be understood in the sense of ‘claiming’.

In fact, the development of the Territorial Sea regime demonstrates the need to claim a Contiguous Zone as well as the reason some States do not declare such zone – in 1958 at UNCLOS I, whilst States failed to settle the issue on the breadth of the Territorial Sea, they were able to set the maximum limit of the Contiguous Zone at 12nm. Thus, if a State claimed a 3nm Territorial Sea – the norm at the time – it could still enforce its limited jurisdiction up to an additional 9nm of Contiguous Zone; further, if a State claimed a 9nm Territorial Sea, its limited jurisdiction could still be exercised beyond no more than 3nm from the outer limits of its Territorial Sea; finally, if a State claimed a Territorial Sea of 12nm, there would be nothing left for its Contiguous Zone. At the conclusion of UNCLOS III in 1982, it was finally resolved that the breadth of the Territorial Sea should not be more than 12nm, the same distance fixed as the maximum limit of the Contiguous Zone 24 years earlier.

In view of the recognition under the modern law of the sea of a broader Territorial Sea over which a coastal State has sovereignty, some States no longer see the need to claim a Contiguous Zone. (In addition, owing to the development of the concept of the Exclusive Economic Zone, some States think it redundant to still claim a Contiguous Zone. This view, as we know, is however inaccurate given that the two zones serve different purposes.) Hence, further exercise by a coastal State of Contiguous Zone powers beyond the erstwhile maximum limit of 12nm up to 24nm from its baselines per the 1982 Law of the Sea Convention (LOSC) will have to be premised on the claim to such zone.

Given this historical backdrop, the statement by some commentators to the effect that a State ‘is not obligated to declare a contiguous zone’ could only mean that it is not mandatory for a State to establish such zone. It hardly suggests that the default scenario or presumption is in favour of the existence of such zone such that a claim or ‘declaration’ can be dispensed with.

Thus, the National Territory provision in the 1987 Philippine Constitution might be of scant assistance, given that there has not been a Philippine claim to a Contiguous Zone. The Philippine Mining Act of 1995 unfortunately focusses on the ‘submerged lands within the contiguous zone’ and not on the relevant law enforcement powers. One cannot help thinking that the idea of the Contiguous Zone in said Act might be a conflation with the concept of the Continental Shelf which is altogether different.

Indeed, a Philippine Maritime Zones Law will clarify the issues on these maritime zones. Considering however the concern that such law could run contradictory to the present Constitution – an argument raised, albeit prematurely perhaps, by the Petitioners in Magallona v. Executive Secretary – we can anticipate obstacles to the enactment of such a law.

As the Philippines moves to comply with its international obligations under the LOSC, it will inevitably have to surrender certain powers that it might have had previously. Thus, it is respectfully submitted that a claim to a Contiguous Zone shall serve to somewhat compensate for such a surrender so that the Philippines is still able to possess and exercise certain powers in areas beyond its Territorial Sea.

I am grateful for the opportunity to have expressed my views on this matter. I am, dear sir,

Faithfully yours,

(Sgd.) Julius A. Yano
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