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EEZ not part of territory

Under the law of the sea, a distinction is made between ‘sovereignty’ and ‘sovereign rights,’ in terms of what powers a State may exercise in a particular maritime zone.

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The International Criminal Court (ICC) decision on Thursday stating that it has no jurisdiction over the crimes against humanity complaint against Chinese President Xi Jinping made clear the points in the debate on what constitutes sovereign limits.

In the ruling, ICC Prosecutor Fatou Bensouda said, “Crimes allegedly committed do not fall within the territorial or otherwise personal jurisdiction” of the ICC, contrary to the contention of former Foreign Affairs secretary Albert del Rosario and Ombudsman Conchita Carpio-Morales who filed the complaint.

The decision has bearing on a Permanent Court of Arbitration ruling that invalidated the nine-dash line claim of China on the disputed West Philippine Sea and which addressed the buildup of structures on maritime features in the contested areas.

The ICC decision noted that under the law of the sea, “a distinction is made between ‘sovereignty’ and ‘sovereign rights,’ in terms of what powers a State may exercise in a particular maritime zone.”

It noted that in the context of the law of the sea, “the sovereignty of a State implies its exclusive legal authority over all its internal waters and territorial sea (and where applicable, the archipelagic waters).”

The ruling noted that “by contrast, in maritime zones beyond the territorial sea (areas sometimes referred to as ‘international waters’), international law confers certain prerogatives on a Coastal State (and to the exclusion of others), such as fiscal, immigration, sanitary and customs enforcement rights in the contiguous zone and natural resource-related rights in the exclusive economic zone (EEZ) and the continental shelf.”

Sovereign rights are limited to specific purposes, as enumerated in the United Nations Convention on the Law of the Sea (UNCLOS) but do not permit the State to exercise full powers over such areas, as sovereignty might allow, the ICC indicated.

Marking boundary
Defining a territory was relevant in determining the accuracy of the allegations of Morales and Del Rosario that the crimes against humanity “were committed by Chinese nationals in the territory of the Philippines.”

“The Court may exercise territorial jurisdiction over the alleged crimes to the extent that they may have been committed in Philippine territory during the period when the Philippines was a State Party, namely 1 November 2011 until 16 March 2019.”

ICC noted the information that it collected confirms that “the alleged conduct in question occurred in areas that are outside of the Philippines’ territorial sea (i.e., in areas farther than 12 nautical miles from its coast), but nonetheless within areas that may be considered to fall within its declared EEZ.”

In its decision, the ICC, without making a conclusion on the territorial friction between both countries, said it nonetheless determined that “a State’s EEZ (and continental shelf) cannot be considered to comprise part of its ‘territory,’ for the purpose of article 12(2)(a) of the Statute.”

Article 12(2)(a) provided ICC may exercise its jurisdiction if the “State on the territory of which the conduct in question occurred” is a State Party to the Statute or if the “crime was committed” on board a vessel or aircraft registered in a State Party.

“Maritime zones beyond the territorial sea, such as the EEZ and continental shelf, are not considered to comprise part of a State’s territory under international law,” it added.

Citing international laws, ICC stressed that “Coastal States may possess only a more limited set of ‘sovereign rights’ in respect of certain maritime areas beyond the territorial sea, such as the EEZ and continental shelf.”

Geography as basis
In summary, the ICC said the “EEZ (and continental shelf) cannot be equated to territory of a State within the meaning of article 12 of the Statute, given that the term ‘territory’ of a State in this provision should be interpreted as being limited to the geographical space over which a State enjoys territorial sovereignty (i.e., its land mass, internal waters, territorial sea and the airspace above such areas).”

“While UNCLOS confers functional jurisdiction to the State for particular purposes in such areas, this conferral does not have the effect of extending the scope of the relevant State’s territory but instead only enables the State to exercise its authority outside its territory (i.e., extraterritorially) in certain defined circumstances,” the ICC added.

In March 2019, Del Rosario and Morales, along with supposed Filipino fishermen, accused Xi and some Chinese officials as accountable for crimes against humanity over China’s activities within the Philippines’ EEZ in the South China Sea and for depriving Filipino fishermen of food and livelihood.

The communication also alleged that China engaged in massive illegal reclamation and artificial island-building in the Spratly Islands as well as tolerated illegal and harmful fishing practices by Chinese nationals in the area, which they claimed not only violated the law of the sea but gave rise to crimes against humanity.

In a joint statement issued a day after the report’s release, Del Rosario and Morales vowed to continue pursuing the case.

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