Avaglez S.

Caniban-Pirote
Political Law Review

G.R No. 187167 August 16, 2011

Magallona v. Ermita

Facts:

In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the maritime
baselines of the Philippines as an archipelagic State. This law followed the framing of the
Convention on the Territorial Sea and the Contiguous Zone in 1958 (UNCLOS I), codifying,
among others, the sovereign right of States parties over their "territorial sea," the breadth
of which, however, was left undetermined. Attempts to fill this void during the second
round of negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus, domestically, RA
3046 remained unchanged for nearly five decades, save for legislation passed in 1968
(Republic Act No. 5446 [RA 5446]) correcting typographical errors and reserving the
drawing of baselines around Sabah in North Borneo.

In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under
scrutiny. The change was prompted by the need to make RA 3046 compliant with the terms
of the United Nations Convention on the Law of the Sea (UNCLOS III), which the Philippines
ratified on 27 February 1984. Among others, UNCLOS III prescribes the 1.) water-land ratio,
length, 2.) contour of baselines of archipelagic States like the Philippines, 3.) sets the
deadline for the filing of application for the extended continental shelf. Complying with
these requirements, RA 9522 1.) shortened one baseline, 2.) optimized the location of some
basepoints around the Philippine archipelago and 3.) classified adjacent territories, namely,
the Kalayaan Island Group (KIG) and the Scarborough Shoal, as "regimes of islands" whose
islands generate their own applicable maritime zones.

The Issue:

1. Whether or not RA 9522 is unconstitutional

Held:

RA 9522 is constitutional.

1. UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a
multilateral treaty regulating, among others, sea-use rights over maritime zones (i.e.,
the territorial waters [12 nautical miles from the baselines], contiguous zone [24
nautical miles from the baselines], exclusive economic zone [200 nautical miles from
 the baselines]), and continental shelves that UNCLOS III delimits. UNCLOS III was the
culmination of decades-long negotiations among United Nations members to codify
norms regulating the conduct of States in the world’s oceans and submarine areas,
recognizing coastal and archipelagic States’ graduated authority over a limited span
of waters and submarine lands along their coasts. Thus, baselines laws are nothing
but statutory mechanisms for UNCLOS III States parties to delimit with precision the
extent of their maritime zones and continental shelves. In turn, this gives notice to
the rest of the international community of the scope of the maritime space and
submarine areas within which States parties exercise treaty-based rights, namely, the
exercise of sovereignty over territorial waters (Article 2), the jurisdiction to enforce
customs, fiscal, immigration, and sanitation laws in the contiguous zone (Article 33),
and the right to exploit the living and non-living resources in the exclusive economic
zone (Article 56) and continental shelf (Article 77). UNCLOS III and its ancillary
baselines laws play no role in the acquisition, enlargement or, as petitioners claim,
diminution of territory. Under traditional international law typology, States acquire
(or conversely, lose) territory through occupation, accretion, cession and
prescription, not by executing multilateral treaties on the regulations of sea-use
rights or enacting statutes to comply with the treaty’s terms to delimit maritime
zones and continental shelves. Territorial claims to land features are outside UNCLOS
III, and are instead governed by the rules on general international law.

2. RA 9522’s Use of the Framework of Regime of Islands to Determine the Maritime Zones
of the KIG and the Scarborough Shoal, not Inconsistent with the Philippines’ Claim of
Sovereignty Over these Areas. The configuration of the baselines drawn under RA
3046 and RA 9522 shows that RA 9522 merely followed the basepoints mapped by RA
3046, save for at least nine basepoints that RA 9522 skipped to optimize the location
of basepoints and adjust the length of one baseline (and thus comply with UNCLOS
III’s limitation on the maximum length of baselines). Under RA 3046, as under RA
9522, the KIG and the Scarborough Shoal lie outside of the baselines drawn around
the Philippine archipelago. This undeniable cartographic fact takes the wind out of
petitioners’ argument branding RA 9522 as a statutory renunciation of the
Philippines’ claim over the KIG, assuming that baselines are relevant for this purpose.

3. Whether referred to as Philippine "internal waters" under Article I of the Constitution

Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters
and of their bed and subsoil:
 a. The sovereignty of an archipelagic State extends to the waters enclosed by the
archipelagic baselines drawn in accordance with article 47, described as archipelagic
waters, regardless of their depth or distance from the coast.
b. This sovereignty extends to the air space over the archipelagic waters, as well as to
their bed and subsoil, and the resources contained therein.
c. The regime of archipelagic sea lanes passage established in this Part shall not in other
respects affect the status of the archipelagic waters, including the sea lanes, or the
exercise by the archipelagic State of its sovereignty over such waters and their air
space, bed and subsoil, and the resources contained therein.

The fact of sovereignty, however, does not preclude the operation of municipal and
international law norms subjecting the territorial sea or archipelagic waters to necessary, if
not marginal, burdens in the interest of maintaining unimpeded, expeditious international
navigation, consistent with the international law principle of freedom of navigation. Thus,
domestically, the political branches of the Philippine government, in the competent
discharge of their constitutional powers, may pass legislation designating routes within the
archipelagic waters to regulate innocent and sea lanes passage. Indeed, bills drawing
nautical highways for sea lanes passage are now pending in Congress.

In the absence of municipal legislation, international law norms, now codified in UNCLOS
III, operate to grant innocent passage rights over the territorial sea or archipelagic waters,
subject to the treaty’s limitations and conditions for their exercise. Significantly, the right of
innocent passage is a customary international law, thus automatically incorporated in the
corpus of Philippine law. No modern State can validly invoke its sovereignty to absolutely
forbid innocent passage that is exercised in accordance with customary international law
without risking retaliatory measures from the international community.

The fact that for archipelagic States, their archipelagic waters are subject to both the
right of innocent passage and sea lanes passage does not place them in lesser footing vis-à-
vis continental coastal States which are subject, in their territorial sea, to the right of
innocent passage and the right of transit passage through international straits. The
imposition of these passage rights through archipelagic waters under UNCLOS III was a
concession by archipelagic States, in exchange for their right to claim all the waters
landward of their baselines, regardless of their depth or distance from the coast, as
archipelagic waters subject to their territorial sovereignty. More importantly, the recognition
of archipelagic States’ archipelago and the waters enclosed by their baselines as one
cohesive entity prevents the treatment of their islands as separate islands under UNCLOS III.
Separate islands generate their own maritime zones, placing the waters between islands
separated by more than 24 nautical miles beyond the States’ territorial sovereignty,
subjecting these waters to the rights of other States under UNCLOS III.