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The IBP JournalI N T E G R A T E D B A R O F T H E P H I L I P P I N E S

Board of Editors

ROAN I. LIBARIOSEditor-in-Chief

EDUARDO A. LABITAGManaging Editor

DANILO L. CONCEPCION

FLORIN T. HILBAY

JAIME G. HOFILEA

MARIO C.V. JALANDONI

CONCEPCION L. JARDELEZA

NASSER A. MAROHOMSALIC

OSCAR G. RAROCARMELO V. SISON

AMADO D. VALDEZ

OLIVER B. SAN ANTONIOVINCENT PEPITO F. YAMBAO, JR.

Associate Editors

VIVIAN C. CAPIZNON VICMUND Q. CAMACHOStaff Layout/Design

VOLUME 33 NUMBER 2 (SEPTEMBER 2008)

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CONTENTS

A Framework for the Study of National Territory:A Statement of the ProblemMerlin M. Magallona .....................................................................................1

The On-going National Territorial Debate:Issues and PerspectivesLeo Tito L. Ausan, Jr. .................................................................................. 28

The Exploration, Development,and Utilization of the SpratlysAmado D. Valdez ......................................................................................... 57

The Legal Significance of the MOAon the Bangsamoro Ancestral DomainVicente V. Mendoza ...................................................................................... 63

The Memorandum of Agreementon Ancestral Domain: A CommentaryNasser A. Marohomsalic, Musa I. Malayang,Carim L. Panumpang and Rasol Y. Mitmug, Jr. .......................................71

Revisiting Charter ChangeThrough Peoples Initiative

Froilan M. Bacungan .................................................................................100

The Purchased Power Adjustment (PPA)Scheme and Its Derivatives: DecipheringCost Recovery Mechanisms andUnderstanding Energy DistributionJuan Arturo Iluminado C. de Castro ........................................................115

Survey of 2006 Supreme Court Decisionson Property and Land RegistrationEduardo A. Labitag ...................................................................................159

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The IBP JOURNAL(ISSN 0118-9247) is an official publicationof the Integrated Bar of the Philippines

Subscription Rates (inclusive of postage):Php1,000.00 (local), US $20.00 (Foreign Individual), US $25.00 (Foreign Institution)

Editorial OfficeIntegrated Bar of the Philippines

15 J. Vargas Avenue, Ortigas Center, Pasig City 1600Telephone: (632) 631-3014/18

Fax: (632) 634-4697Website: www.ibp.org.ph Email: [email protected]

The IBP Journal accepts papers dealing with legal issues and developments as well as socio-economic and political issues with legal dimensions. Only manuscripts accompanied by a softcopy (diskette, CD, e-mail, etc.), including an abstract and the curriculum vitae of the author, shallbe accepted.

All papers to be submitted must be signed. The articles published in the IBP Journal do notnecessarily represent the views of the Board of Editors. Only the authors are responsible for theviews expressed therein.

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Synopsis

(The Articles in this Issue)

In this edition, the IBP Journal is dishing out another array of select legalarticles to keep lawyers and legal scholars abreast with timely, relevant, if not pressing,legal issues of the day.

Taking center stage is the debate on the Philippine territorial integrity, whichhurtled to national limelight with the spate of controversial proposals involvingamendments to the existing Baseline Law, the joint development of the Spratlys,and the Memorandum of Agreement (MOA) on the Bangsamoro Juridical Entity.

Merlin M. Magallona, an acknowledged expert in international law, opensup the debate with an extensive presentation entitled A Framework for the Study of the

National Territory. While traversing the entire breadth of the Philippine territorialclaims, the article draws attention to two potential cataclysms that could submergeour claims over Sabah and Spratlys, particularly the Kalayaan Islands Group (KIG).

First, the approval of pending House Bill No. 3216, which deliberately eliminatesSec. 2 of R.A. 5446 (the Baseline Law) the only legislative re-affirmation of Philippinesovereignty over Sabah. If enacted into law, the bill which has breezed throughsecond reading would operate as a repeal of the Sabah provision of the presentBaseline law, resulting in the derogation of the other territories clause of the

Constitution. Second, the adoption of the regime of islands formula as proposedby the Executive Branch in dealing with our claim over Spratlys. In its present form,the formula would trash into pieces our sovereign claim over the regime of internalwaters around the Kalayaan Island Group of the province of Palawan, including theseabed, subsoil and air space.

Infusing historical dimension to the current debate is the disquisition of LeoTito L. Ausan, Jr., an expert on International Maritime Law, entitled The NationalTerritorial Debate: Issues and Perspectives. The article traces the debate to the long-standing dilemma facing the Philippine archipelago in delimiting its territorial baselines

whether to stick it out with the UNCLOS or with the International Treaty Limits(ITL). As to which legal approach to take, the Philippines has yet to make up itsmind. As a result, the national debate on territorial outer limits rages on with noimmediate denouement in sight.

Amado D. Valdez, another scholar in international law, shares his AlternativePerspectives on the Exploration, Development and Utilization of the Spratlys. Citing the militarypredominance of China which could scuttle the Philippine claim into a waning andwhining rhetoric, he takes a conciliatory position, proposing to resolve the impassebased on a joint maritime approach, rather than cutting up the Spratlys islands like

a big piece of real estate. The primary consideration is not territorial integrity butjoint development with other claimant-states of the maritime zone teeming with richoil reserves.

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From Spratlys in South China Sea, the debate on territorial integrity shifts toa different dimension and arena where peaceful dialogues have taken the backseatin favor of armed hostilities the heartland of Muslim Mindanao.

In The Legal Significance of the MOA on the Bangsamoro Ancestral Domain,Vicente V. Mendoza, a distinguished constitutionalist and a retired Justice of theSupreme Court, dissects the document which envisions a Bangsamoro Juridical Entity(BJE) in Southern Philippines. The MOA defies easy legal classifications as it cannotbe upheld without amending the Constitution. To save it from nullity, the MOA hasto be treated as a hybrid, an instrument of recognition cum treaty for the recognitionand declaration of the independence of the BJE. And that would spell a virtual sell-out of territorial integrity. But as raised by the author, are we prepared to pay thatstiff price in the name of peace in Mindanao?

Muslim scholars Nasser A. Marohomsalic, Musa Malayang, Carim L.Panumpang and Rasol Y. Mitmug, Jr., in their Memorandum of Agreement on

Ancestral Domain: A Commentary, add to the BJE debate by arguing that the MOA isconstitutional. The authors present with much passion the historical and legal basesfor the creation of what they categorize as a sub-state within the Philippinearchipelago that fully realizes the aspirations for self-determination of theBangsamoro people.

In Revisiting Charter Change through Peoples Initiative, Froilan M. Bacungan,

a former law dean and constitutionalist, shares his trenchant analysis on anothertimely topic. The article presents the thesis that the existing RA 6735 is adequate tocover the system of peoples initiative on amendments to the constitution but subjectto the procedural and legal requirements laid down inLambino vs. Comelec (505 SCRA218).This means that peoples initiative may only cover proposals for amendments,not revisions, to the Constitution.

In Purchased Power Adjustment (PPA) Scheme and Its Derivatives: Deciphering CostRecovery Mechanisms in the Distribution of Electric Power and Undertaking Government Policyon Energy Distribution, Juan Arturo Illuminado C. de Castro, a budding scholar

on the power industry, examines the mechanics behind the passing on the systemsloss to consumers. The issue surged to national prominence in the recent take-overbid by GSIS over Meralco which was marred by a bribery scandal that jolted theentire Court of Appeals.

To cap the edition, Eduardo A. Labitag, a veteran law professor and managingeditor of the IBP Law Journal, presents another annual harvest of jurisprudence toenrich legal knowledge Survey of 2006 Supreme Court Decisions on Property and Land

Registration.

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1VOLUME 33 NUMBER 2 (SEPTEMBER 2008)

A Framework forthe Study of National Territory:

A Statement of the Problem*

Merlin M. Magallona**

1. Constitutional Foundation

1.1. The present Constitution defines the National Territory in Article I as

follows:The national territory comprises the Philippine archipelago, with all

the islands and waters embraced therein, and all other territories overwhich the Philippines has sovereignty or jurisdiction, consisting of itsterrestrial, fluvial, and aerial domains, including its territorial sea, theseabed, the subsoil, the insular shelves, and other submarine areas. Thewaters around, between, and connecting the islands of the archipelago,regardless of their breadth and dimensions, form part of the internalwaters of the Philippines.

Under this definition, the geomorphological and political base of the PhilippineState consist of the following components:

(a) the Philippine Archipelago, and

(b) all other territories over which the Philippines has sovereignty orjurisdiction.

Based on the structure of this constitutional text, the appurtenances of these

components are identified, thus:

As to the main component, i.e., the Philippine Archipelago, it has the followingappurtenances:

(a) all the islands and waters embraced therein; and

(b) its internal waters consisting of the waters around, between, andconnecting the islands of the archipelago, regardless of their breadthand dimensions.

* Presented during the symposium at the Malcolm Theater, U.P. College of Law on May 29, 2008 on the SpratlyIslands: Impact of the UNCLOS on the Territorial Integrity of the Philippines and other Related Legal Issues.

** Professorial Lecturer, former Dean and Professor of Law, College of Law, University of the Philippines.

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These appurtenances serve to demonstrate that the Constitution embodiesthe concept of an archipelago as a unity of land and water, which is integral to thehistorico-cultural and political elements of the Philippine Archipelago.

There are appurtenances which the Constitution identifies as pertaining tothe entire national territory, i.e., to both components. These are:

(a) territorial sea;(b) fluvial domain;(c) aerial domain (air space);(d) seabed and subsoil; and(e) insular shelves and other submarine areas.

A. Constitutional History of thePhilippine Archipelago TheMain Component of National Territory

1.2. By the Treaty of Paris of 10 December 1898, Spain ceded to the UnitedStates the Philippine Islands. Article III of this Treaty reads in part:

Spain cedes to the United States the archipelago known as the Philippine

Islands lying within the following lines . [drawing the International TreatyLimits (ITL) in technical terms].

The Treaty of Paris is complemented by the Treaty between the Kingdom ofSpain and the United States of America for Cession of Outlying Islands of thePhilippines concluded on 7 November 1900, and by the Convention between theUnited States and Great Britain Delimiting the Boundary between the PhilippineArchipelago and the State of North Borneo concluded on 2 January 1930.

Thus, the Philippine Archipelago as the main component of national territory

comprehends the Philippine Islands described as archipelago in Article III of theTreaty of Paris, with the addition of the islands included by the two companiontreaties referred to above. The said Spain-US Treaty of 7 November 1900 considersthese additional islands as belonging to the [Philippine] Archipelago even as itidentifies them as lying outside the lines described in Article III of [the Treaty ofParis]. It affirms that all such islands shall be comprehended in the cession of theArchipelago as fully as if they had been expressly included within those lines. Theseislands include Cagayan, Sulu and Sibutu. Under the US-Great Britain Conventionof 2 January 1930, Turtle Islands and Mangsee Islands are acknowledged ascomprised within the Philippine Archipelago.

The US-Great Britain Treaty mentioned above describes the ITL as theboundary defined by the Treaty between the United States of America and Spain

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A Framework for the Study of National Territory: A Statement of the Problem

signed at Paris, December 10, 1898,1 to which is connected the boundary betweenthe Philippine Archipelago and the State of Borneo it has established.2

Insofar as they define the national territory, the relevant provisions of thesetreaties, particularly the Treaty of Paris, have been constitutionalized, embodied inSection 1, Article I of the 1935 Constitution in the following text:

The Philippines comprises all the territory ceded to the United States bythe Treaty of Paris concluded between the United States and Spain onthe tenth day of December eighteen hundred and ninety-eight, the limits ofwhich are set forth in Article III of said treaty, together with all the islandsembraced in the treaty concluded at Washington, between the UnitedStates and Spain on the seventh day of November, nineteen hundred,

and in the treaty concluded between the United States and Great Britainon the second day of January, nineteen hundred and thirty, and all territoryover which the present Government of the Philippine Islands exercises

jurisdiction.3

In establishing the delimitation of national territory, this provision of the 1935Constitution takes the lines described in Article III of the Treaty of Paris, referredto above as the ITL, as the boundaries of the Philippines by prescribing that thelimits of which are set forth in Article III of the said treaty. These agreements arenot to be treated merely as bilateral treaties of interest to the states parties. They

have acquired constitutional status in the definition of national territory as elementsof the Philippine State.

This understanding is reflected in the proceedings of the 1934 ConstitutionalConvention which framed the 1935 Constitution. For example, Committee ReportNo. 7 of the Convention, submitted by the Committee on Territorial Delimitationon 31 August 1934, refers to Article III of the Treaty of Paris as describing theboundaries of the Philippine Islands.

1.3. With particular regard to the fact that the 1935 Constitution provides forthe ITL as the boundaries of the Philippines, it is significant to recall that the saidfundamental law was approved by the President of the United States pursuant to theTydings-McDuffie Law of 1934, An Act [of the U.S. Congress] to provide for theComplete Independence of the Philippine Islands, to provide for the Adoption of aConstitution and a Form of Government for the Philippine Islands and for OtherPurposes. As required by Section 3 of this Act, the President of the United Statescertified that the 1935 Constitution conformed substantially with the provisions ofthis Act and accordingly approved it, presumably with due regard to the definitionof national territory.

1 Article I. The US-Great Britain Convention is in 137 League of Nation Treaty Series 299. Emphasis added.

2 Preamble. Emphasis added.

3 Emphasis added.

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[2] The Philippine Government considers the limitations of its territorialsea as referring to those waters within the recognized treaty limits,10 and for thisreason it takes the view that the breadth of the territorial sea may extendbeyond twelve miles. It may therefore be necessary to make exceptions,upon historical grounds, by means of treaties or conventions betweenStates .

Again, based on the boundaries drawn by the ITL, the Philippines presentedits position in the 1960 UN Conference on the Law of the Sea, as follows:

[S]ince the Treaty of Paris was ratified, and throughout all the timethat the Philippineswas under the American flag and the United States wasexercising sovereign rights over all the land and sea territory embraced in that treaty ,

there was no protest from anyone against the exercise of such sovereignty.And since the Philippines became independent and continued to exercisesovereignty and jurisdiction over the same territory, there has likewisebeen no protest by any state. The title of the Philippines to a widerextent than twelve miles of territorial sea, therefore, has both a legal andhistoric basis. Such title cannot and should not be affected adversely byany new rule on the breadth of the territorial sea that may be adopted inthis conference. A historic title is a generally recognized basis of acquiredor established rights.

The territorial sea of the Philippines, over which my country exercisessovereignty and jurisdiction by virtue of a legal and historic title, is, therefore,comprised of all the waters beyond the outermost islands of the archipelago but withinthe boundaries set by the Treaty of Paris. The case of the Philippines is sui

generis, and cannot be covered by a general rule that may be formulatedby the breadth of the territorial sea . [W]e must state that it isunthinkable and impossible for us to lend our support to any proposalwhich may be interpreted, evenly remotely, as impairing any of our historicrights, and which may be used as an excuse by foreign vessels and

fisherman to penetrate with impunity into the very heart of ourarchipelago.11

1.6. The foregoing review, showing Article III of the Treaty of Paris12 asdefining the boundaries of the Philippines represented by the ITL, is synthesized inthe present Baseline Law - Republic Act No. 3046 as amended by Republic Act No.5446 - An Act Defining the Baselines of the Territorial Sea of the Philippines. It isbased on the premise that all the waters within the limits sets forth in the above-mentioned treaties have always been regarded as part of the territory of the PhilippineIslands.

10 Emphasis added. This means the waters within the ITL.

11 Emphasis added.

12 Together with the two companion treaties already identified above.

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This law defines the Philippine territorial seaas comprising all the waters beyondthe outermost islands of the archipelago but within the limits of the boundaries setforth in the aforementioned treaties. The territorial sea therefore extends fromthe baselines connecting the outermost islands of the Philippine Archipelago to theITL.

It also defines all the waters around, between and connecting the variousislands of the Philippine archipelago as necessary appurtenances of the landterritory, forming part of the inland or internal waters of the Philippines.13

Hence, when the Baseline Law provides that all the waters within the limitsset forth in the abovementioned treaties have always been regarded as part of theterritory of the Philippine Islands, these waters are of two categories, as pointed

out above, namely: (a) the territorial sea and (b) the internal waters, both beingregimes of sovereignty of the Philippines.

Again, the Philippine position provided in the present Baseline Law, outlinedabove, was communicated to the international community. The Philippine delegationto the UN Committee on the Peaceful Uses of the Sea-bed and the Ocean FloorBeyond the Limits of National Jurisdiction delivered a statement on 16 August 1971,which in part reads:

. . . [T]he only rule that would be consistent with the nature of an

archipelago as one State is that which would require and allow anarchipelago to draw a single baseline around the islands that constitute itby joining appropriate points of the outermost islands of the archipelagowith straight lines. We have followed this rule, having defined and clarifiedby legislation the baselines from which our territorial sea shall commence.The waters within the baselines are internal waters; those outside proceeding seawardwithin defined limits constitute our territorial sea.14

B. Other Territories Under Philippine Sovereigntyor Jurisdiction the Second Component ofNational Territory

1.7. As formulated above, the other component of national territory is subsumedunder the clause all other territories over which the Philippines has sovereignty or

jurisdiction in Article I of the present Constitution, territories which by law orhistoric right pertains to the Philippines.

13 Emphasis added.

14 Estelito P. Mendoza, The Base-Lines of the Philippines, 46 Philippine Law Journal 628, 633 (September 1971).The Philippine statement was delivered in Sub-Committee II of this UN Committee by Prof. Estelito P.Mendoza.

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There are two legal enactments which are integrally connected to the other-territories clause of the Constitution. By virtue of this interconnectivity, thisconstitutional clause has the effect of inhibiting their repeal or amendment adverseto territorial sovereignty. These enactments were already in place when the 1987Constitution came into effect, and on account of the other-territories clause theyhave gained constitutional recognition.

These enactments are:

(1) The present Baseline Law Republic Act No. 3046 of 1961, as amendedby Republic Act No. 5446. Section 2 of Republic Act No. 5446 provides:

The definition of the baselines of the territorial sea of thePhilippine Archipelago as provided in this Act is withoutprejudice to the delineation of the baselines of the territorialsea around the territory of Sabah, situated in North Borneo, overwhich the Republic of the Philippines has acquired dominion andsovereignty.15

(2) Presidential Decree No. 1596 which took effect on 11 June 1978. Itdeclares that the Kalayaan Island Group (KIG) shall belong and be subjectto the sovereignty of the Philippines, together with the seabed, subsoil,continental margin and air space. Under this Decree, the islands

comprehended by the KIG are regarded as one area and as such isconstituted as a distinct and separate municipality of the Province ofPalawan and shall be known as Kalayaan.

1.8. Approved on second reading in the House of Representatives is HouseBill No. 3216, An Act Defining the Archipelagic Baselines of the PhilippineArchipelago, Amending for the Purpose Republic Act No. 3046 as amended byRepublic Act No. 5446. Apparently mindless of the interconnectivity between thepresent Baseline Law and the other-territories clause of the Constitution, the billdeliberately eliminates Section 2 of Republic Act No. 5446 which is the only legislative

affirmation of Philippine sovereignty over Sabah. If enacted into law, the bill wouldoperate as a repeal of the said Sabah provision of the present Baseline Law, resultingin the derogation of the other-territories clause of the Constitution.

In place of the Sabah provision of Republic Act No. 5446, the bill installs awithout prejudice clause which reads:

The delineation of baselines as provided in this Act shall be withoutprejudice to any claims to any contested portions of the national territoryor maritime

zones and jurisdiction of the Philippines in accordance with internationallaw and under appropriate international dispute resolution mechanisms.16

15 Emphasis added.

16 Emphasis added.

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UNCLOS may demand that the constituent areas of land and water formationswithin the KIG be divided into categories of islands under paragraph 1 of Article121 and of rocks under paragraph 2 of that provision, with the possible result in thereduction of areas of sovereign rights and jurisdiction. Paragraph 2 provides thatRocks which cannot sustain human habitation or economic life of their own shallhave no exclusive economic zone or continental shelf.

Constituted as a political unit, as a distinct and separate municipality of theProvince of Palawan, KIG has a regime of internal waters around, between andconnecting its constituent islands. It would appear as a result that the formula ofregime of islands may eliminate the regime of internal waters between, aroundand separating the constituent islands of the KIG, and would have adverse effectson the sovereignty over the affected sea-bed, subsoil as well as the air space.

Overall, on account of the constitutional recognition under the other-territoriesclause, territorial sovereignty over the KIG under Presidential Decree No. 1596should be beyond statutory alteration in order to prevent derogation of the nationalterritory as defined in Article I of the Constitution. Note that the said PresidentialDecree sets out in precise technical description the boundaries of the KIG, togetherwith the identification of the furthest points which, if connected by straight lineswould serve or become the baselines. Hence, not only that the changes to beintroduced by the bill would prove to be superfluous, but these would be as wellinimical to territorial sovereignty.

2. Reorganizing the NationalTerritory: Shift from The Treaty

of Paris to the UNCLOS

A. The Philippines as an Archipelago

2.1. By Article III of the Treaty of Paris, Spain cedes to the United States thearchipelagoknown as the Philippine Islands.19 The term archipelagoused as descriptiveof the Philippines pertains to a historically established entity organized into onepolitical unit. Sovereignty of the King of Spain was proclaimed over the wholeArchipelago with Manila declared as its capital,20 and governed as such for morethan three centuries as a unity of land and water. Under a centralized administrationas a Spanish possession, the Philippines then consisted of thirty-three provinces,from Luzon to Mindanao, inhabited by a population of about 5 million paying tributeto the Spanish royal treasury.21 Following the defeat of the Spanish forces in the

19 Emphasis added.

20 John Foreman, The Philippine Islands, 1906, p. 36.

21 See Jean Mallet, The Philippines: History, Geography, Custom, Agriculture, Industry and Commerce of theSpanish Colonies in Oceania, 1994, trans. By Pura-Santillan-Castrence, Chap. V.

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battle of Manila by the US occupying forces, the terms of capitulation were signedby the military authorities of both camps, the principal stipulation of which was thesurrender of the whole Philippine Archipelago.22

Relinquishment of sovereignty to the United States over the Philippines as apolitical unity covered all aspects of governmental powers, including the determinationof status of Spanish subjects and of the native population in the entire territoryceded to the United States.23 In transition from military government, the Instructionsof US President McKinley of 7 April 1900 strengthened the utilization of the islandsinto an archipelagic unity considered as one juridical category this time to beadministered by a central civil government exercising legislative authority throughoutthe entire archipelago, which included the making of rules and orders having theeffect of law, the raising of revenues by taxes, customs duties and imposts; the

appropriation and expenditure of public funds of the Islands; the establishment ofan education system to secure an efficient civil service; the organization of a systemof courts; the organization and establishment of municipal and departmentalgovernments, and the institution of the English language as a common medium ofcommunication, [i]n view of the great member of languages spoken by the sectorsof population in various parts of the archipelago.

2.2. Thus, long before the international law of the sea has evolved thearchipelagic concept that is now crystallized in Article 46(1) of the UNCLOS, thePhilippines was already established as an archipelago in unity of land and water as

formalized in Article III of the Treaty of Paris, together with its authoritativeinterpretation set out above.

It is instructive that a study on mid-ocean archipelagos that formed part of thepreparatory work of the 1958 UN Conference on the Law of the Sea reflects thepolitico-geologic nature of the archipelago exemplified in the case of the PhilippineIslands. Prepared by Jens Evensen, it defines outlaying or mid-ocean archipelagosas groups of islands situated out in the ocean at such distance from the coasts offirm lands as to be considered as an independent whole rather than forming part of or

outer coastline of the mainland.24

The study goes on to point out the geographicaland historical peculiarities of outlaying [or mid-ocean] archipelagos:

No hard-and-fast rule exists whereby a State is compelled to disregard the geographic,historical (and economical) peculiarities of outlaying archipelagos. Frequently theonly natural and practical solution is to treat such outlaying archipelagos as awholefor the delimitation of territorial waters by drawing straight baselinesfrom the outermost points of the archipelago - that is, from the outermostpoints of the constituent islands, islets and rocks - and by drawing the

22 Foreman, op. cit., at 464-465.

23 SeeTreaty of Paris, Arts. VIII and IX.

24 Document A/CONF. 13/18. SeeUN Conference on the Law of the Sea, 1958, vol. I, p. 290. Emphasis added.

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seaward limit of the belt of the marginal seas at a distance of x nauticalmiles outside and parallel to such baselines.25

It is against the background of clashing interests in the 1958 UN Conferenceof the Sea that the Congress of the Philippines enacted the baseline law in RepublicAct No. 3046 in 1961. Supported by the Evensen study, it crystallizes into definitivelegislative pronouncement the position taken by the Philippine diplomatic notesreferred to above.

B. In Synthesis: The UNCLOSin Relation to the Treaty of Paris

2.3. The application of the UNCLOS to the Philippine territorial regime hasthe effect of eliminating the juridical function of the Treaty of Paris insofar as itestablished the boundaries of the Philippine State. It nullifies the authoritativeinterpretations of the Treaty of Paris to that effect, as reviewed above.

Since the Philippines has established under its law and practice that Article IIIof the Treaty of Paris defines the boundaries of the Philippines, the breadth of itsterritorial waters should extend from the baselines to the ITL. The vast expanse ofterritorial waters within the boundaries set by the Treaty of Paris is spelled out bythe Committee on National Territory of the 1971 Constitutional Convention in itsReport No. 1, thus:

Now if we plot on a map the boundaries of the Archipelago as set forth inthe Treaty of Paris, a huge or giant rectangle will emerge, measuringabout 600 miles in width and over 1200 miles in length. Inside this rectangleare the 7,100 islands comprising the Philippine Islands. From the eastcoast of Luzon to the eastern boundary of this huge rectangle in thePacific Ocean, there is a distance of over 300 miles. From the west coastof Luzon to the western boundary of this giant rectangle in the China

Sea, there is a distance of over 150 miles.

On the other hand, when these boundaries are set aside as a consequence ofthe application of the UNCLOS, the territorial sea is reduced to a breadth notextending twelve nautical miles from the baselines. The UNCLOS reduces theterritorial sea by 230,000 square miles, or almost by 50% which means the collapseof territorial sovereignty as extended to the territorial sea. If the limits set forth inthe Treaty of Paris are understood in the concept of boundaries, as they are, to beapplied in complement with the present Baseline Law, it is calculated that the area ofthe countrys territorial sea would cover about 520,700 squares miles.26

25 Ibid.

26 Seeestimate in Primer on the United Nations Convention on the Law of the Sea, published by the Departmentof Foreign Affairs, Manila, May 1991, p. 15.

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C. The UNCLOS and the Constitution

(1) Boundaries of the National Territory

2.4. Boundary is defined in international law as a line which determines thelimit of the territorial sphere of jurisdiction of States or other entities having aninternational status.27 Necessarily, boundaries are permanent lines of de jure

jurisdiction.28

Deriving its definition of national territory from the 1935 Constitution, thepresent fundamental law takes the lines drawn in Article III of the Treaty of Paris,together with the two companion treaties, as the boundaries of the Philippines. Butthe implementation of the UNCLOS will have the effect of nullifying the legal status

or function of the said treaty limits. The operation of Articles 47 and 48 of theUNCLOS in relation to its Article 3 will have that effect in a wholesale manner.

Under the Treaty of Paris, the boundaries of the Philippines as drawn in ArticleIII forms an integral part of its definition as an Archipelago and becomes an elementof its statehood which is built into its National Territory as described in Section 1,Article I of the 1935 Constitution. The term archipelago in the definition of nationalterritory under the 1973 and the present Constitution perpetuates the geographical,historical, political and legal context by which the 1935 fundamental lawconstitutionalized the nature of the Philippines as an archipelago under the Treatyof Paris.

If the Philippines is to be categorized as an archipelagic state under theUNCLOS, the breadth of its territorial sea would be drawn from the archipelagicbaselines. It is from these baselines that the territorial sea would be measured.Since under Article 3 of the UNCLOS the breadth of the territorial sea is limited to12 nautical miles from the baselines, then accordingly the outer limit of territorialsovereignty extends no more than 12 nautical miles from the same starting point.

2.5. The claim of the United States Government that the limits set forth in theTreaty of Paris are not boundaries but merely represent lines of allocation for theislands only and do not necessarily include the waters within,29 is belied by theenactments of the U.S. Congress indicating the Treaty of Paris limits the boundariesof the Philippine Archipelago. It is an act of denying its own past in the establishmentand administration of Philippine Island as its colony and the legal consequences ofits own sovereign acts as a colonial power. Even if these are to be regarded asunilateral acts of the United States, nevertheless they are acts of sovereignty and

27 M. Bothe, Boundaries, in R. Bernhardt (ed.), Encyclopedia of Public International Law, Vol. I, pp. 443, 447(1992).

28 Id., at 444.

29 SeeMerlin M. Magallona, International Law Issues in Perspective, 1996, pp. 204-205.

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they would assume validity for the reason that no rule of international law at thetime prohibited its assertion and that they enjoy the acquiescence of the internationalcommunity.

(2 ) Internal Waters Transformed into Archipelagic Waters:the Watered-Down Sovereignty

2.6. In defining national territory, the present Constitution specifies that

The waters around, between and connecting the islands of the archipelago,regardless of breadth and dimensions, form part of the internal waters ofthe Philippines.30

The provision runs in continuity with the territorial principles of the 1935 andthe 1973 Constitutions. In a position communicated to the United Nations in 1955,the Philippines emphasized the legal status of these waters, as follows:

The position of the Philippine Government in the matter is that all watersaround, between and connecting the different islands belonging to thePhilippine Archipelago irrespective of their width or dimensions, arenecessary appurtenance of its land territory, forming an integral part of the nationalor inland waters, subject to the exclusive sovereignty of the Philippines ...31

All the more is the sovereignty over these waters vital as a political consolidationof a State whose material base is characterized by geographic fragmentation.

Waters properly characterized as national waters or internal waters areclosely linked to land territory by reason of the vital interests of the territorialsovereign concerning conditions of national and territorial integrity, of defense, orcommerce and of industry.32 Land territory and internal waters are one under thesovereignty of a State. International law strikes a difference between territorial sea

and internal waters in that it permits right of innocent passage by foreign ships inthe former, but not through internal waters.33 It is only upon prior permission ofthe coastal State that submarine cable or pipelines may be laid in internal waters.Moreover, in customary international law there does not exist a ... right of access to

30 Emphasis added.

31 Emphasis added.

32 R. Lagoni, Internal Waters, in Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, vol. 11(North Holland, 1989), p. 153.

33 See UNCLOS, Art. 17 and Convention on the Territorial Sea and Contiguous Zone, Art. 14(1). The onlyexception to the exclusion of right of innocent passage through internal waters pertains to a case of what usedto be territorial waters, or parts of territorial sea, which has been enclosed by straight baselines as internalwaters.

34 Rainer Lagoni, Internal Waters, Seagoing Vessels, in Rudolf Bernhardt (ed.), Encyclopedia of Public InternationalLaw, vol 11, 1989, pp. 155-156.

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internal waters in general or to ports in particular,34 except in cases of distress.Warships and government ships operated for non-commercial purposes may notenter the internal waters of a State without its prior consent. A coastal State mayallow entry to internal waters and to its ports upon certain conditions, which rightmay be withdrawn.35

On the other hand, the UNCLOS will radically change the status of thePhilippine internal waters by transforming them into archipelagic waters. Under theUNCLOS, what the 1987 Constitution refers to as waters around, between, andconnecting the islands of the archipelago are said to be subject to the sovereignty ofthe Philippines as an archipelagic state,36 but that sovereignty is watered down bythe following limitations:

(a) Ships of all states enjoy the right of innocent passage through archipelagicwaters.37 This means that as a matter right foreign ships are allowed to navigatethrough the Philippine waters around, between, and connecting the islands of thearchipelago, including stopping and anchoring incidental to ordinary navigation.38

In direct danger and risk to national security and environmental integrity, this rightpertains to foreign submarines and nuclear-powered ships and ships carrying nuclearor other inherently dangerous or noxious substances.39 In making provision forthe innocent passage of submarines and nuclear powered ships, the UNCLOS doesnot expressly exclude nuclear-armed ships and may imply they are allowed innocentpassage in the archipelagic waters. It contains rules regulating the right of innocent

passage for warships, clarifying all the more that this right pertains to this category ofships.40 Oil tankers too are among the beneficiaries of innocent passage throughthese waters, posing potential environmental disasters.41

(b) In archipelagic waters, the Philippines has the duty to recognize traditionalfishing rights and other legitimate activities of the immediately neighboring States.42

(c) The Philippines must respect existing submarine cables laid by other Statesand passing through its waters without making a landfall and shall allow the

maintenance and replacement of such cables upon receiving due notice of theirlocation and the intention to repair or replace them.43

35 See R.R. Churchill and A.V. Lowe, The Law of the Sea, 1983, pp. 46-47.

36 See UNCLOS, Art. 49.

37 UNCLOS, Art. 52(1).

38 UNCLOS, Art. 57 in relation to Arts. 17 and 18.

39 UNCLOS, Art. 52(1) in relation to Arts. 20 and 23.

40 The right of innocent passage for warships, submarines, and nuclear-powered ships is applied to archipelagicwaters by reference to the rules applicable to these vessels in innocent passage in the territorial sea. Seereferenceto Part II, section 3 of the UNCLOS by Art. 52(1). SeeF. Ngantcha, The Right of Innocent Passage and the

Evolution of the International Law of the Sea, 1990, pp. 123-154.

41 SeeUNCLOS, Art. 22(2).

42 See UNCLOS, Art. 51(1).


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Under the UNCLOS, the vast expanse of internal waters over which thePhilippines has full territorial sovereignty are radically reduced to small pockets ofwaters enclosed by straight lines drawn across the mouth of rivers directly flowinginto the sea, waters in bays, and in permanent harbor works, including lagoons insidereefs.44

In the real sense, what are properly internal waters under our fundamentallaw will cease to be part of the countrys territorial sovereignty by virtue of theseserious restrictions. UNCLOS has the effect of eliminating in a wholesale mannerthese internal waters as an integral part of Philippine sovereignty.

Thus, the UNCLOS presents an anomaly in that it gives a new status toPhilippine internal waters, calling them archipelagic waters, and subjects them to more

restrictions than it does to the territorial sea. Consequently, the territorial sea surrounds aregime of waters inside the countrys baselines burdened with more onerous dutieson the part of the Philippines than those in the territorial sea. The view of Churchilland Lowe is of striking relevance to marine pollution from ships in their innocentpassage through waters interconnecting the Philippine islands:

... [T]he Convention [on the Law of the Sea] in its provisions on pollutiongives the coastal state additional enforcement jurisdiction in respect ofpollution over foreign vessels in its territorial sea .... This additional

jurisdiction does not apply in archipelagic waters. The result, therefore,

is that in its archipelagic waters an archipelagic State has less enforcementjurisdiction over foreign vessels in matters of pollution than a non-archipelagic State in its territorial sea ... or than the archipelagic Stateitself has in its own territorial sea lying beyond its archipelagic waters.45

(3 ) Archipelagic Sea Lanes and Air Space - InternationalHighways Traversing Zones of Exclusive Economic Zone,Territorial Sea, Internal Waters and Air Space

2.7. It is through the archipelagic sea lanes that the UNCLOS has the mostdevastating impact on Philippine sovereignty. In addition to the right of innocentpassage of foreign vessels through the territorial sea and the archipelagic waters ofarchipelagic states, the UNCLOS creates a new maritime regime, namely, thearchipelagic sea lane passage. The central feature of this new regime is the duty of thePhilippines as an archipelagic state to designate sea lanes and air routes suitablefor the continuous and expeditious passage of foreign ships and aircraft through orover the archipelagic waters and the adjacent territorial sea.46 Jayewardene interprets

44 UNCLOS, Arts. 50 in relation to Arts 9, 10 and 11. SeeH.W. Jayewardene, The Regime of Islands in InternationalLaw, 1990, p. 98.

45 Churchill and Lowe, op. cit. supra, note 34 at 96-97.


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the UNCLOS as requiring that each archipelagic sea lane be 50 nautical miles wide.47

Each archipelagic sea lane is to traverse the archipelagic waters and the territorialsea in order to create continuous, expeditious and unobstructed transit betweenone part of the high seas or an exclusive economic zone and another part of the highseas or an exclusive economic zone.48 The right of archipelagic sea lanes passageconsists of two components, namely: (1) the right of passage of all ships, and (2) theright of overflight of all aircraft. Both components pertain to all States and the archipelagicstate cannot discriminate in form or in fact among foreign ships,49 which shouldapply as well to foreign aircraft. It shall not hamper nor suspend the archipelagicsea lanes passage.50

Archipelagic sea lanes are indeed in the nature of international highways cuttingacross the territory of an archipelagic state and excluded from the exercise of its

sovereign authority, so that foreign ships and aircraft, particularly those of navalpowers, can maintain worldwide mobility. The proceedings of the Third UNConference on the Law of the Sea, which prepared the UNCLOS, reveal that thespecial character of the archipelagic sea lanes passage lies primarily in the military-security demands of the US, which were accepted by the Conference in exchange forcompromises and concessions.

One major result of these compromises and concessions is synthesized byShigeru Oda, former judge of the International Court of Justice, as follows:

...the new regime on the passage through straits and archipelagic waterswas introduced not only for the navigation of commercial vessels, but, in

particular, to maintain uninterrupted navigation of warships -including submarinesand the free navigation of military aircraft.

[In the early 1970s] the United States declared that it would accept the12-mile territorial sea limit on certain conditions, among others that thefree and uninterrupted passage for warships and military aircraft andsubmarines through straits used for international navigation be guaranteed.

This was a basic point of the new regime of transit passage through straits.

The idea of the archipelagic sea lane passage developed in a similarfashion

Even this development [i.e., the proposal to define innocent passageof vessels in the archipelagic waters, sponsored principally by the

47 This is an interpretation of Art. 53(3) which requires that the sea lanes and air routes shall be defined by a seriesof continuous axis lines from the entry points of passage routes to the exit points. It provides that ships and

aircraft shall not deviate more than 25 nautical miles to either side of such axis lines.


49 SeeUNCLOS, Art. 42(2) in relation to Art. 54.

50 SeeUNCLOS, Art. 44 in relation to Art. 54.

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Philippines and Indonesia] was unacceptable to the US Navy, becauseunder the innocent passage concept its submarines would not be able tocarry out underwater operations. The US Navy would only accept thearchipelagic concept on the condition that the undetected and uninterrupted

passage of submarines would be guaranteed throughout the archipelagic waters. Thus,the concept of the archipelagic sea lanes passage was first introduced to permit navalvessels including submarines and military aircraft to enjoy a free and uninterrupted

passage through the archipelagic waters.51

Article 53(1) and (2) of the UNCLOS now provides that Allships and aircraftenjoy the right of archipelagic sea lanes passage in such sea lanes and air routes,which archipelagic states are under duty to designate.52

Kwiatkowska has a more concrete explanation as to the military-securitymotivation of the right of archipelagic sea lanes passage, thus:

The right of innocent passage would be perfectly adequate for commercialnavigation and non-applicability of this right never hindered civil aviation.But archipelagic sea lane passage was necessary to enable a submergednavigation of submarines and maneuvering of a military aircraft whichare not permissible under the innocent passage regime.53

As to submarines, an anomaly in the UNCLOS arises from the fact that it

requires submarines to navigate on the surface in the territorial sea,54 whereas intransit through the archipelagic sea lanes they are allowed passage in their submergedstate, or in the normal mode.55 It can be generalized then that

The essential feature of archipelagic sea lanes passage is that the UnitedStates, Soviet Union, Britain, France, and possibly others may send theSSBNs [nuclear ballistic missile submarines] or attack submarines througharchipelagic waters in their normal mode of operation. This right ofarchipelagic sea lane passage is especially important [to such naval powers]

in the Southwest Pacific archipelagos of the Philippines and Indonesiafor east-west transit to and from the Indian Ocean.56

51 S. Oda, The Passage of Warships Through Straits and Archipelagic Waters, in J.M. Van Dyke, et als. (eds.),International Navigation: Rocks and Shoals Ahead?, 1988, pp. 155-156. Emphasis added.

52 Emphasis added. Obviously, the world all intends to convey the meaning of the provision as includingmilitary vessels and aircraft, without being explicit about their special character.

53 B. Kwiatkowska, An Evaluation of State Legislation on Archipelagic Waters, 6 World Bulletin 22, 23(Nov. Dec. 1990).

54 UNCLOS, Art. 20.


56 D.L. Larson, Security Issues and the Law of the Sea: A General Framework, 15 Ocean Dev. & Intl L. 99, 118(1985).

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As to overflight over the archipelagic sea lanes, Kwiatkowska further explainsthe peculiar military nature of this right, thus:

The requirement that air routes must be above archipelagic sea laneswas dictated not by need of civil air navigation but by the necessity to

provide maneuvering possibilities for military aircraft while the naval forces of aparticular fleet are passing through the sea lanes . . . .

It follows from the foregoing that, contrary to what is often maintained,a general right of free overflight above archipelagic waters can - due to itsstrict application to the air space above the archipelagic sea lanes - beimplemented in practice only by military aircraft. Civil aircraft couldclearly not fulfill the zigzagging above the archipelagic sea lanes and of

overflying archipelagic waters without passing above archipelagic land(island) territory57

This security concern over the archipelagic sea lanes passage is qualitativelymagnified because of the expansion of sea-based nuclear weapons systems. As aUnited Nations study shows,

The sea has now become the operational environment of ballistic missilesubmarines, each of which has been estimated to be carrying the equivalentof more explosive power than was used by all the combatants in the

Second World War. The combination of missile and warhead design,nuclear propulsion power, highly accurate navigation and guidance systemsand sophisticated hull design and construction techniques has providedthe opportunity for the development of an entirely new naval capabilityof awesome specific power.58

Until lately, a great percentage of the ICBMs is sea-borne and more than 7,000strategic nuclear warheads are carried by submarines of the five nuclear-weaponstates.59 And yet with respect to passage through the archipelagic sea lanes, the

UNCLOS does not require prior authorization - or even just notification - for thepassage of submarines or warships carrying nuclear weapons or other dangerous ornoxious cargoes.60

In this context, a more specific situation emerges in the case of the Philippines.Under Article 53(4) of the UNCLOS the archipelagic sea lanes, together with the airroutes for overflight, shall include all normal passage routes used as routes forinternational navigation. Under the UNCLOS, if the Philippines fails to designatesea lanes or air routes, the right of archipelagic sea lanes may be exercised through

5 7 Op. cit. supra note 53, at 41-42.58 UN Dept. of Disarmament Affairs, The Naval Arms Race (New York, 1986), p. 14.

59 Id. At p. 27.

60 See. H.W. H.W. Jayewardene, The Regime of Islands in International Law, 1990, pp. 170-171.

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these normal routes of international navigation.61Taking into account existing normalroutes for international navigation, how many archipelagic sea lanes may traversethe Philippine archipelago? On this basis, at least four of such internationalhighways each not less than 50 nautical miles wide, are likely to cut across its territory.Between the Pacific Ocean and the South China Sea, thefirstroute may pass throughLuzon Strait (which consists of the Bashi, Balintang, and Babuyan Channels) inBatanes. The secondmay go through San Bernardino Strait and Verde Island Passage.The third, through Surigao Strait, may connect the Pacific Ocean with Mindanao andthe Sulu Seas from which ships may go out into the South China Sea through theBalabac Strait in southern Palawan.62 Passing through Mindoro Strait, the fourthroute may connect the South China Sea with the Celebes Sea through Basilan Strait.The other branch of this fourth route may go out through Balabac Strait into theIndonesian route and on to the Singapore Strait or Malacca Strait.63

Bear in mind that these archipelagic sea lanes are drawn across what thePhilippine Constitution characterizes as internal waters over which the Philippinesexercises sovereignty as well its territorial sea.

(4) Transit Passage

2.8. Among the straits used for international navigation which may be usedfor archipelagic sea lane passage, eight are situated entirely within the archipelagicwaters of the Philippines,or what are its internal waters under the Philippine Constitution.Under the UNCLOS, transit passage through straits used for international navigationconstitutes a separate legal regime established principally for the military interestsof the naval powers. In continuity with archipelagic sea lanes passage, all ships andaircraft have the freedom of navigation and overflight through these straits.64Again,submarines are allowed passage in their normal modes, i.e., underwater, withoutthe obligation to surface. Where these straits do not form part of archipelagic sealanes, transit passage through them constitutes an additional restriction to Philippineterritorial sovereignty, quite apart from the archipelagic sea lanes and innocent

passage through connecting waters of the countrys islands.

2.9. On the whole, the UNCLOS raises fundamental questions which beardirectly on the security and integrity of the Philippine State. Why the Philippinesmust pay such a heavy price in the interest of the military powers points to a reviewof the Philippine position with respect to the UNCLOS.

61 Art. 53(12).

62 SeeB. Kwiatkowska, An Assessment of Philippine Legislation on Archipelagic Waters, 6 World Bulletin 28,35-36 (Sept.-Oct. 1990).

63 Ibid.

64 See UNCLOS, Arts. 37 and 38.

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3. A Conditional Concurrence

of the UNCLOS by the Batasang Pambasa:

Is There Concurrence At All?

3.1. By Resolution No. 121, The Batasang Pambansa expressed its concurrencein the UN Convention on the Law of the Sea on 27 February 1984. It reads:

Resolved by the Batasang Pambansa, To concur, as it hereby concurs, inthe United Nations Convention on the Law of the Sea entered into andsigned by the Representative of the Republic of the Philippine onDecember 10, 1982 at Montego Bay, Jamaica, with the understanding embodiedin the Declaration filed on behalf of the Republic of the Philippines by

the head of the Philippine delegation when he signed the said Convention.It is to be assumed that this Declaration, entitled The Philippine Declaration

on the Signing of the Convention on the Law of the Sea, has become an integralpart of the Concurrence Resolution. Its full meaning may be disclosed when itscontent is correlated with the Declaration.

From the viewpoint of national law, the Declaration, having been made anintegral part of Resolution No. 121, is deemed an enactment of the Batasang Pambansawithin its constitutional authority. Its significance lies in its disclosure of a fuller

legislative intent as to the limitations that will control the operation of the UNCLOS.It should be obvious that the undertakings contained in the Declaration are in thenature of conditions, such as:

1. The signing of the Convention by the Government of the Republic ofthe Philippines shall not in any manner impair or prejudice the sovereign rights ofthe Republic of the Philippines under and arising from the Constitution of the

Philippines;

2. Such signing shall not in any manner affect the rights of the Republic of thePhilippines as successor of the United States of America, under and arising out of theTreaty of Parisbetween Spain and the United States of America of December10, 1898, and the Treaty of Washington between the United States ofAmerica and Great Britain of January 2, 1930;

* * *

3. Such signing shall not diminish or in any manner impair or prejudicethe sovereign rights of the Republic of the Philippines over any territory

over which sovereign authority, such as the Kalayaan Islands, and thewaters appurtenant thereto;

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4. The Convention shall not be construed as amending in any manner any pertinentlaws and Presidential Decrees or Proclamations of the Republic of thePhilippines; .65

* * *

In the light of these conditions, the implementation of the UNCLOS withrespect to the Philippines would run against the grain of the Constitution and,therefore, contrary to the intent of the Concurrence Resolution. The supremacy ofthe Philippine Constitution and the laws over the UNCLOS as affirmed in theDeclaration would preclude the effectuation of UNCLOS in Philippine jurisdiction.

The understanding in paragraph 1 of the Declaration means that the rights of

sovereignty of the Philippines as embodied in the Constitution shall prevail over itsaffected obligations under the UNCLOS, giving rise to a complete negation of theUNCLOS as a treaty on the part of the Philippines. By reason of this paragraph, itwould not be legally possible for the UNCLOS to change the character of the internalwaters connecting the constituent islands of the Philippine Archipelago intoarchipelagic waters. Neither would it be possible for such internal waters to betraversed by archipelagic sea lanes on account of the UNCLOS.

Paragraph 2 of the Declaration reaffirms the legal status of the Treaty ofParis. It asserts the rights of the Philippines arising from this Treaty, which should,

in the first place, pertain to territorial sovereignty as delimited by the ITL. In thisrespect, the Declaration confirms the premise of the present Baseline Law that allthe waters within the limits sets forth in the abovementioned treaties have alwaysbeen regarded as part of the territory of the Philippine Islands.66

Under paragraph 5 of the Declaration, it is impermissible for the UNCLOS toeffect changes in the present Baseline Law which will continue to be effective, inparticular with respect to the prescriptions contained in its preamble, among whichare:

1. [A]ll the waters within the limits set forth in the abovementionedtreaties have always been regarded as part of the territory of the PhilippineIslands;

2. [A]ll the waters beyond the outermost islands of the archipelago butwithin the limits of the boundaries set forth in the aforementioned treatiescomprise the territorial sea of the Philippines; . . .

65 Emphasis added.

66 Referring to the Treaty of Paris and the two companion treaties.

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Pursuing the interpretation of the Declaration as part of the ConcurrenceResolution in the context of national law, it would be instructive to inquire into theobjections of other states parties to the UNCLOS against this Declaration. By thesemeans, the Declaration comes into clearer view as a statement of exceptions to, orof modification of the legal effects of, the UNCLOS with respect to the Philippines.

The Declaration, according to the formal objection of the Union of SovietSocialist Republics (Russian Federation), is a statement made by the Philippinesupon signature and then confirmed upon ratification. It contains exceptions tothe Convention and is incompatible with Article 310 of the Convention, implyingthat the Declaration contains statements purporting to exclude or to modify thelegal effect of the provisions of this Convention in their application to the Philippines.The Russian Federation is of the view that the Declaration emphasizes more than

once that, despite its ratification of the Convention, the Philippines will continue tobe guided in matters relating to the sea, not by the Convention and the obligationunder it, by its domestic law and by agreements it has already concluded which arenot in line with the Convention.67

To the same effect is the objection of Czechoslovakia.68 It points out that theDeclaration indicates that in spite of having ratified the Convention, the Philippinesintends to follow its national laws and previous agreements rather than the obligationsunder the Convention, not only taking into account of whether those laws andagreements are in harmony with the Convention but even, as proved in paragraph 6

and 7 of the Philippine understanding [or Declaration], deliberately contraveningthe obligations set forth therein.69

Ukraines objection70 pursues the same points, saying that the statement ofthe Government of the Republic of the Philippines has the purpose of establishingunjustified exceptions for that State, and in fact of modifying the legal effect ofimportant provisions of the Convention as applied thereto.

Australias position71 states that the Philippines does not consider that it is

obliged to harmonize its law with the provisions of the Convention [and it] is seekingto modify the legal effect of the Conventions provisions.

While made in the context of international law, the foregoing statements ofstate parties to the UNCLOS, among others, indicates as well the interpretiveimplications of the Declaration considered as part of national law. They havesynthesized the central point of the Declaration that it holds the PhilippineConstitution and the laws in supremacy over the UNCLOS, which is impermissible

67 E.D. Brown, The International Law of the Sea: Vol. II Documents, Cases and Tables, 1994, pp. 101-102.

68 Raphael Perpetuo M. Lotilla (ed.), The Philippine National Territory, 1995, pp. 542-543.

69 Ibid., pp. 544-545.

70 Ibid., 544-545.

71 Ibid., pp. 547-548.

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4.3. In regard to the Concurrence Resolution No. 121 pertaining to theUNCLOS, together with the Declaration considered as its integral part, by virtue ofits conditional character it cannot be given effect under the treaty clause of the 1973Constitution, the fundamental law at the time. The concurrence requirement underthe Constitution must be related to the act of ratification embodied in the Instrumentof Ratification signed by the President who transmitted it to the Batasang Pambansaunder the 1973 Constitution (or to the Senate under the present Constitution),together with the treaty or convention in question, with the request for concurrenceof such treaty. If the Batasan or the Senate expresses concurrence subject to certainconditions or reservations, then there is failure of ratification as requested by thePresident set forth in the Instrument of Ratification. The conditions which theBatasan or the Senate stipulates would be sent back to the President, together withsuch treaty, as its response to the Presidents request for concurrence in his act of

ratification.

These conditions would have the effect - if not explicitly specified by the Batasanor the Senate - of a request to the President for him to renegotiate the treatypursuant to such conditions, assuming that he would persist in the ratification of thetreaty in compliance with the request of the Batasan or the Senate. If he does notact on the conditions indicated by the Batasan or the Senate, his Instrument ofRatification would have no legal effect. Hence, the Constitution provides no roomfor conditional concurrence.

It would be a separate problem to consider whether the treaty in questionwould satisfy the standard of constitutionality or validity set forth in the substantivecontent of the conditions set forth in the Declaration. As an integral part of theConcurrence Resolution, the Declaration sets these standards, by which the UNCLOSis shown, as pointed out above, to be incompatible with the Constitution. Thus,based on Resolution No. 121 of the Batasan to which the said Declaration is integrated,there is failure of ratification of the UNCLOS by reason of the unfulfilled conditionswhich the Resolution and the Declaration require.

Hence, Resolution No. 121 of the Batasan by its own terms cannot be bindingas an act of concurrence for the reason that the UNCLOS impairs the rights ofsovereignty of the Philippines under the Constitution and those under the Treaty ofParis and that it effects amendments to Philippine laws, contrary to the mandates ofthe Declaration as part of the said Resolution, which has the force of law in Philippine

jurisdiction.

4.4. Even on the assumption that as a treaty the UNCLOS becomes bindinglaw by virtue of ratification based on valid concurrence by the Batasan, itsimplementation involving as it does the reorganization of Philippine territorial

sovereignty is open to question under the international law of treaties. The subject-matter of the UNCLOS implementation is the territorial status of the Philippineswhich has been established and settled long before the negotiations for the UNCLOS

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started in the Third UN Conference on the Law of the Sea and much longer beforethe entry into force of the UNCLOS on 16 November 1994.

Thus, UNCLOS is to be accorded retroactive application, which customaryinternational law does not allow. As codified in the Vienna Convention on the Lawof treaties of which the Philippines is a party, the non-retroactivity rule providesthat

Unless a different intention appears from the treaty or is otherwiseestablished, its provisions do not bind a party in relation to any act orfact which took place or any situation which ceased to exist before thedate of the entry into force of the treaty with respect to that party. 72

Under the UNCLOS, there appears no intention to apply its provisionsretroactively. Article 308 of the UNCLOS stipulates that it shall enter into force12 months after the date of deposit of the sixtieth instrument of ratification oraccession, which took place on 16 November 1994.

Article 310 of the UNCLOS allows a State party to make declarations orstatements with a view to the harmonization of its laws and regulations with theprovisions of this Convention. But this provision does not intend to define anobligation; it pertains to a unilateral act or declaration of a state party which is leftto its discretion to make.

The UNCLOS also provides in Article 311(2) that

This Convention shall not alter the rights and obligations of States Partieswhich arise from other agreements compatible with this Convention andwhich do not affect the enjoyment by other States Parties of their rightsor the performance of their obligations under this Convention.

This may imply that such rights and obligations arising from agreements other

than the UNCLOS may be subject to alteration if not compatible with the UNCLOS.Under this provision may the definition of the national territory as embodied in theTreaty of Paris, together with its companion international agreements, be altered toalign the territorial rights of the Philippines along the requirements of the UNCLOS?

Insofar as Article 311(2) of the UNCLOS, given above, purports to haveretroactive application of the UNCLOS, its operation is to be deemed controlled bythe non-retroactivity rule in Article 28 of the Vienna Convention on the Law ofTreaties (1969), which applies to the UNCLOS on account of the fact that the

72 Article 28.

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UNCLOS entered into force on the date after the entry into force of the said ViennaConvention on 27 January 1980.73

Above all, the UNCLOS cannot effectuate any alteration of internationalagreements defining the territorial sovereignty without derogation of statesovereignty. It is a basic principle of international law under the Charter of theUnited Nations as affirmed in the UN Declaration on Principles of InternationalLaw that all states enjoy sovereign equality. By this principle, each state has the dutyto respect the personality of other states; the territorial integrity of the state isinviolable.74

Having in mind this principle, any claim to an obligation under the UNCLOSmust be subject to the supremacy clause in Article 103 of the UN Charter which

reads that

In the event of a conflict between the obligations of the Members of theUnited Nations under the present Charter and their obligations underany other international agreement, their obligations under the presentCharter shall prevail.

Reinforcing the protection of its territorial sovereignty and integrity, precludingalteration of its territorial status by third-party settlement or intervention is theeffect of the Philippine reservation to its acceptance of the compulsory jurisdiction

of the International Court of Justice (ICJ), referred to above. To repeat, itsrecognition of the ICJs jurisdiction does not apply to any dispute Arising out of orconcerning jurisdiction or rights claimed or exercised by the Philippines . . . [i]nrespect of the territory of the Republic of the Philippines, including its territorialseas and inland waters.

73 As a general rule, Article 4 of the Vienna Convention on the Law of Treaties (1969) provides that thisConvention applies only to treaties, which are concluded by States after the entry into force of the presentConvention with regard to such States.

74 This Declaration was adopted by the UN General Assembly as Resolution 2625 (XXV) on 24 October 1970.Its full title is Declaration on Principles of International Law Concerning Friendly Relations and CooperationAmong States in Accordance with the Charter of the United Nations. It declares that the principles it embodiesconstitute the basic principles of international law. For text of Declaration, see Merlin M. Magallona,Fundamentals of Public International Law, 2005, pp. 843-858.

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Leo Tito L. Ausan, Jr.

The On-going National

Territorial Debate:

Issues and Perspectives*

Leo Tito L. Ausan, Jr.**

Introduction

The national territorial debate in the Philippines had its resurgence duringthe first half of this year. While there could be loud disagreements on what couldhave possibly triggered it, many would agree that the debate is simply a redux ofsimilar verbal and written tanglings on the subject in the past like those that oncetranspired in the halls where the countrys constitutions were crafted, in the chambersof the legislature where bills were dissected and treaties were scrutinized, in meetingrooms where negotiating positions were processed, in studies where speeches wereassembled and decrees were written, and in journals and other relevant publicationswhere issues and perspectives were expressed and clashed.

Today, as was in many occasions before, the debate remains as passionate andas charged with patriotic fervor. For a subject as sensitive and as controversial asnational territory, this is both understandable and expected. However and again likein the past, no early end looms. The issues remain complex and befuddled even astheir respective manifold perspectives are not being clearly set out. Hence, seriousand stoic analyses for the purpose of arriving at a desirable resolution that wouldserve the countrys best interests are never undertaken. And the debate continues.

This is an attempt to present in brief the debates issues and perspectives.

This is done in the fervent hope that when presented in proper and accurate context,they are made more percipient. Perhaps this could help in fermenting a collectiverealization that the country could not ignore them much longer and must now actand squarely address them in order to end the debate, once and for all.

* A lecture-presentation delivered during the IBP Journal Lecture Series on the Spratly Islands: Impact of theUNCLOS on the Territorial Integrity of the Philippines and other Related Legal Issues at the MalcolmTheater, U.P. College of Law, Diliman Quezon City, 29 May 2008.

** Atty. Leo Tito L. Ausan, Jr., LL.M. in International Maritime Law (International Maritime Organization-International Maritime Law Institute, Malta) is a mid-level officer in the Philippine Foreign Service. He iscurrently the Acting Executive Director of the Ocean Concerns Officers (OCO), Department of Foreign Affairs.He wrote and delivered this lecture in his private capacity. The views expressed are his alone, unless dueattribution is made.

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The On-going National Territorial Debate: Issues & Perspectives

RPs National Territory and its Peculiarities

The Philippines is a mid-ocean archipelago1 that is geo-strategically located inthe heart of Southeast Asia. Its 7,107 islands are surrounded by the Pacific Ocean

on the East, the South China Sea on the West and North and the Celebes Sea on theSouth. 62 of its 81 provinces have access to the sea and their aggregate coastlinestretches to 36,289 km. It is at the crossroads of major international navigationalroutes. In fact, majority of the worlds tankers, super or otherwise, that pass throughthe Straits of Malacca and Singapore and the Sunda and Lombok Straits of Indonesia,proceed to the South China Sea at its westside and onwards. Domestically, it itselfplays host to five major straits ordinarily used for international navigation.2

Exploratory geological activities abound in its southwestern waters, which possess ahigh yield potential for oil and gas. Further, it is renowned as the center of the

center of marine biodiversity and is situated at the apex of the so-called CoralTriangle.

The national territory of the Philippines, which prides itself of the aforesaidunique geo-physical peculiarities, is defined in its 1987 Constitution as comprisesthe Philippine Archipelago and embraces islands, waters and all other territoriesover which the Philippines has sovereignty or jurisdiction. It further describes it asconsisting of terrestrial (including the seabed, the subsoil, the insular shelves andother submarine areas), fluvial (including the territorial sea) and aerial domains.3

Surveyors determine land and water areas on the basis of where they start andend, which of course must be clearly identified and established. The determinationof the terrestrial domain (land area) of the Philippines at 296,340 sq. km.4was surelydone in this manner. Similar ease does not obtain, however, in the determination ofthe fluvial and aerial areas of the country. While it is a fact that the measuring of theexpanse of the countrys waters starts where its lands end, it is uncertain where thisshould end as the Philippines national territorial boundaries the outer limits ofits territorial sea is, to date, not definite. Consequently, measuring the aerial domainupwards on the basis of the outer limits of the fluvial domain cannot be performedaccurately.

1 Geographically, archipelagos can be classified into two (2), namely: (a) continental or coastal; and (b) mid-oceanor outlying archipelagos. Coastal or continental archipelagos are those situated so close to the mainland thatthey may be reasonably considered to be part and parcel thereof, forming more or less an outer coast line. TheNorwegian Skjaergaard and the Canadian Arctic Archipelago are prominent examples of coastal archipelagos.On the other hand, mid-ocean or outlying archipelagos are defined as groups of islands situated in the ocean atsuch a distance from the coasts of the firm land as to be considered as an independent whole rather than formingpart of or outer coastline of the mainland. This type of archipelagos are further divided on the basis of politicalstatus unto those forming the whole territory of states (i.e., archipelagic states) and mid-ocean archipelagosbelong to continental states. Philippines and Indonesia exemplify mid-ocean archipelagic states, while FaeroeIslands typify a mid-ocean archipelago belonging to a continental state (Denmark). (Munavaar, Mohamed, ceanStates: Archipelagic Regimes in the Law of the Sea, Martinus Nijhoff Publishers, 1993, at 15 & 17.

2 Those that traverse through Luzon Strait/Bashi/Balintang & Babuyan Channels; from the Verde Island Passage

to the San Bernardino Strait; Mindoro Strait-Basilan Pass/Sibutu Pass; Surigao Strait to Balabac Strait; andthrough the Balut Channel.

3 Art. 1, Sec. 1, 1987 Constitution.

4 Represents the aggregate of all surfaces delimited by international boundaries and/or coastlines, excludinginland water bodies (lakes, reservoirs, rivers) (CIA Factbook).

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A line running from west to east along or near the twentieth parallel ofnorth latitude, and through the middle of the navigable channel of Bachi,from the one hundred and eighteenth (118 th) to the one hundred andtwenty seventh (127th) degrees meridian of longitude east of Greenwich,thence along, the one hundred and twenty seventh (127th) degree meridianof longitude east of Greenwich to the parallel of four degree and fortyfive minutes (445) north latitude, thence along the parallel of fourdegrees and forty five minutes (445) north latitude to its intersectionwith the meridian of longitude one hundred and nineteen degrees andthirty five minutes (11935) east of Greenwich, thence along, the meridianof longitude one hundred and nineteen degrees and thirty five minutes(11935) east of Greenwich to the parallel of latitude seven degrees andforty minutes (740) north, thence along the parallel of latitude seven

degrees and forty minutes (740) north to its intersection with the onehundred and sixteenth (116th) degree meridian of longitude east ofGreenwich, thence by a direct line to the intersection of the tenth (10 th)degree parallel of north latitude with the one hundred and eighteenth(118th) degree meridian of longitude east of Greenwich, and thence alongthe one hundred and eighteenth (118th) degree meridian of longitude eastof Greenwich to the point of beginning.

Subsequently, on 7 November 1900, in the sole article of the US-Spain Treatyof Cession of Outlying Islands of the Philippines, Spain relinquished to the United

States all title and claim of title, which she may have had at the time of the conclusionof the Treaty of Peace of Paris, to any and all islands belonging to the PhilippineArchipelago, lying outside the lines described in Article III of that Treatyand particularly to the islands of Cagayan, Sulu & Sibutu and their dependencies,and agrees that all such islands shall be comprehended in the cession of theArchipelago as fully as if they had been expressly included within those lines. Forthis relinquishment, the United States paid Spain the sum of One Hundred Thousanddollars ($100,000.00).

Thirty years later, in Article III of the US-UK Convention Delimiting theBoundary Between the Philippine Archipelago & the State of North Borneo 1930,the States parties agreed that All the islands to the north & east of an agreed anddeclared line (described in Article I of the Convention) and all islands and rockstraversed by the said line, should there be any such, shall belong to the PhilippineArchipelago and all islands to the south and west of the said line shall belong to theState of North Borneo. The islands referred to here are the Turtle and MangseeIslands.

The aforementioned lines collectively referred to as ITL hereinafter

(Map No. 1), were accordingly embodied in the legislation of the period, as follows:

Sec.14. Territorial jurisdiction and extent of powers of Philippinegovernment. The territory over which the Government of the Philippine

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Leo Tito L. Ausan, Jr.

Islands exercises jurisdiction consists of the entire Philippine Archipelagoand is comprised in the limits defined by the treaties between theUnited States and Spain, respectively signed in the city of Paris on thetenth day of December, eighteen hundred and ninety-eight; and in thecity of Washington on the seventh day of November, one thousand ninehundred.5; and

Sec. 16. Territorial jurisdiction and extent of powers of Philippinegovernment. - The territory over which the Government of the PhilippineIslands exercises jurisdiction consists of the entire Philippine Archipelagoand is comprised in the limits defined by the treaties between theUnited States and Spain, respectively signed in the city of Paris onthe tenth day of December, eighteen hundred and ninety-eight; and in the

city of Washington on the seventh day of November, one thousand ninehundred.6

In the 1935 Constitution of the Philippine Commonwealth, the territorycomprised in the Philippines Islands was described as that which:

comprises all the territory ceded to the United States by the Treaty ofParis concluded between the United States and Spain on the tenth day ofDecember, eighteen hundred and ninety-eight, the limits which are setforth in Article III of said treaty, together with all the islands embraced

in the treaty concluded at Washington between the United States andSpain on the seventh day of November, nineteen hundred, and the treatyconcluded between the United States and Great Britain on the secondday of January, nineteen hundred and thirty, and all territory over whichthe present Government of the Philippine Islands exercises jurisdiction.7

In 1961, the Congress enacted Republic Act No. 3046, which described thenational territory in its preamble as follows:

WHEREAS, the Constitution of the Philippines describes the national

territory as comprising all the territory ceded to the United States by theTreaty of Paris concluded between the United States and Spain onDecember 10, 1898, the limits of which are set forth in Article III of saidtreaty, together with all the islands embraced in the treaty concluded atWashington, between the United States and Spain on November 7, 1990,and in the treaty concluded between the United States and Great Britainon January 2, 1930 and all the territory over which the Government ofthe Philippine Islands exercised jurisdiction at the time of the adoptionof the Constitution;

5 Art. IV, Act No. 2657 (Administrative Code of 1916).

6 Art. IV, Act No. 2711 (Revised Administrative Code of 1917).

7 Art. I (National Territory), Sec. 1.

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WHEREAS, all the waters within the limits set forth in the above-mentioned treaties have always been regarded as part of the of theterritory of the Philippine Islands;

x x x

WHEREAS, all the waters beyond the outermost islands of the archipelagobut within the limits of the boundaries set forth in the aforementionedtreaties comprise the territorial sea of the Philippines.

In the 1973 Constitution, the Philippines first constitution after it was grantedindependent by the Americans in 1946, the national territory was described tocomprise the Philippine archipelago, with all the islands and waters embraced therein,

and all the other territories belonging to the Philippines by historic or legal title, includingthe territorial sea, the air space, the subsoil, the sea-bed, the insular shelves, and thesubmarine areas over which the Philippines has sovereignty or jurisdiction. x x x.8

The phrase by historic and legal title embraced the three (3) treaties enumeratedin Article I, Section 1 of the 1935 Constitution.

Thereafter, the 1987 Constitution did away with the phrase by historic andlegal title and substituted it with over which the Philippines has sovereignty or

jurisdiction, to wit:

The national territory comprises the Philippine archipelago, with all theislands and waters embraced therein, and all other territories over whichthe Philippines has sovereignty or jurisdic