Magallona vs. Ermita July 16, 2011 - 14
Magallona vs. Ermita July 16, 2011 - 14
Magallona vs. Ermita July 16, 2011 - 14
SUPREME COURT
Manila In 1961, Congress passed Republic Act No. 3046 (RA
3046)2 demarcating the maritime baselines of the
EN BANC Philippines as an archipelagic State.3 This law followed
the framing of the Convention on the Territorial Sea
G.R No. 187167 August 16, 2011 and the Contiguous Zone in 1958 (UNCLOS
I),4 codifying, among others, the sovereign right of
PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY- States parties over their "territorial sea," the breadth of
LIST REP. RISA HONTIVEROS, PROF. HARRY C. which, however, was left undetermined. Attempts to fill
ROQUE, JR., AND UNIVERSITY OF THE PHILIPPINES this void during the second round of negotiations in
COLLEGE OF LAW STUDENTS, ALITHEA BARBARA Geneva in 1960 (UNCLOS II) proved futile. Thus,
ACAS, VOLTAIRE ALFERES, CZARINA MAY ALTEZ, domestically, RA 3046 remained unchanged for nearly
FRANCIS ALVIN ASILO, SHERYL BALOT, RUBY five decades, save for legislation passed in 1968
AMOR BARRACA, JOSE JAVIER BAUTISTA, ROMINA (Republic Act No. 5446 [RA 5446]) correcting
BERNARDO, VALERIE PAGASA BUENAVENTURA, typographical errors and reserving the drawing of
EDAN MARRI CAÑETE, VANN ALLEN DELA CRUZ, baselines around Sabah in North Borneo.
RENE DELORINO, PAULYN MAY DUMAN, SHARON
ESCOTO, RODRIGO FAJARDO III, GIRLIE FERRER, In March 2009, Congress amended RA 3046 by
RAOULLE OSEN FERRER, CARLA REGINA GREPO, enacting RA 9522, the statute now under scrutiny. The
ANNA MARIE CECILIA GO, IRISH KAY KALAW, MARY
change was prompted by the need to make RA 3046
ANN JOY LEE, MARIA LUISA MANALAYSAY, MIGUEL
compliant with the terms of the United Nations
RAFAEL MUSNGI, MICHAEL OCAMPO, JAKLYN
HANNA PINEDA, WILLIAM RAGAMAT, MARICAR Convention on the Law of the Sea (UNCLOS
RAMOS, ENRIK FORT REVILLAS, JAMES MARK III),5 which the Philippines ratified on 27 February
TERRY RIDON, JOHANN FRANTZ RIVERA IV, 1984.6 Among others, UNCLOS III prescribes the
CHRISTIAN RIVERO, DIANNE MARIE ROA, water-land ratio, length, and contour of baselines of
NICHOLAS SANTIZO, MELISSA CHRISTINA SANTOS, archipelagic States like the Philippines7 and sets the
CRISTINE MAE TABING, VANESSA ANNE TORNO, deadline for the filing of application for the extended
MARIA ESTER VANGUARDIA, and MARCELINO continental shelf.8 Complying with these requirements,
VELOSO III, Petitioners, RA 9522 shortened one baseline, optimized the
vs. location of some basepoints around the Philippine
HON. EDUARDO ERMITA, IN HIS CAPACITY AS archipelago and classified adjacent territories, namely,
EXECUTIVE SECRETARY, HON. ALBERTO ROMULO, the Kalayaan Island Group (KIG) and the Scarborough
IN HIS CAPACITY AS SECRETARY OF THE Shoal, as "regimes of islands" whose islands generate
DEPARTMENT OF FOREIGN AFFAIRS, HON. their own applicable maritime zones.
ROLANDO ANDAYA, IN HIS CAPACITY AS
SECRETARY OF THE DEPARTMENT OF BUDGET
Petitioners, professors of law, law students and a
AND MANAGEMENT, HON. DIONY VENTURA, IN HIS
legislator, in their respective capacities as "citizens,
CAPACITY AS ADMINISTRATOR OF THE NATIONAL
MAPPING & RESOURCE INFORMATION AUTHORITY,
taxpayers or x x x legislators,"9 as the case may be,
and HON. HILARIO DAVIDE, JR., IN HIS CAPACITY AS assail the constitutionality of RA 9522 on two principal
REPRESENTATIVE OF THE PERMANENT MISSION grounds, namely: (1) RA 9522 reduces Philippine
OF THE REPUBLIC OF THE PHILIPPINES TO THE maritime territory, and logically, the reach of the
UNITED NATIONS, Respondents. Philippine state’s sovereign power, in violation of
Article 1 of the 1987 Constitution,10 embodying the
DECISION terms of the Treaty of Paris11 and ancillary
treaties,12 and (2) RA 9522 opens the country’s waters
landward of the baselines to maritime passage by all
CARPIO, J.: vessels and aircrafts, undermining Philippine
sovereignty and national security, contravening the
The Case country’s nuclear-free policy, and damaging marine
resources, in violation of relevant constitutional
This original action for the writs of certiorari and provisions.13
prohibition assails the constitutionality of Republic Act
No. 95221(RA 9522) adjusting the country’s In addition, petitioners contend that RA 9522’s
archipelagic baselines and classifying the baseline treatment of the KIG as "regime of islands" not only
regime of nearby territories. results in the loss of a large maritime area but also
prejudices the livelihood of subsistence the merits, we find no basis to declare RA 9522
fishermen.14 To buttress their argument of territorial unconstitutional.
diminution, petitioners facially attack RA 9522 for what
it excluded and included – its failure to reference either On the Threshold Issues Petitioners Possess
the Treaty of Paris or Sabah and its use of UNCLOS Locus Standi as Citizens
III’s framework of regime of islands to determine the
maritime zones of the KIG and the Scarborough Shoal. Petitioners themselves undermine their assertion
of locus standi as legislators and taxpayers because
Commenting on the petition, respondent officials raised the petition alleges neither infringement of legislative
threshold issues questioning (1) the petition’s prerogative15 nor misuse of public funds,16 occasioned
compliance with the case or controversy requirement by the passage and implementation of RA 9522.
for judicial review grounded on petitioners’ alleged lack Nonetheless, we recognize petitioners’ locus standi as
of locus standi and (2) the propriety of the writs of citizens with constitutionally sufficient interest in the
certiorari and prohibition to assail the constitutionality resolution of the merits of the case which undoubtedly
of RA 9522. On the merits, respondents defended RA raises issues of national significance necessitating
9522 as the country’s compliance with the terms of urgent resolution. Indeed, owing to the peculiar nature
UNCLOS III, preserving Philippine territory over the of RA 9522, it is understandably difficult to find other
KIG or Scarborough Shoal. Respondents add that RA litigants possessing "a more direct and specific
9522 does not undermine the country’s security, interest" to bring the suit, thus satisfying one of the
environment and economic interests or relinquish the requirements for granting citizenship standing.17
Philippines’ claim over Sabah.
The Writs of Certiorari and Prohibition Are Proper
Respondents also question the normative force, under Remedies to Test the Constitutionality of Statutes
international law, of petitioners’ assertion that what
Spain ceded to the United States under the Treaty of In praying for the dismissal of the petition on
Paris were the islands and all the waters found within preliminary grounds, respondents seek a strict
the boundaries of the rectangular area drawn under the observance of the offices of the writs of certiorari and
Treaty of Paris. prohibition, noting that the writs cannot issue absent
any showing of grave abuse of discretion in the
We left unacted petitioners’ prayer for an injunctive exercise of judicial, quasi-judicial or ministerial powers
writ. on the part of respondents and resulting prejudice on
the part of petitioners.18
The Issues
Respondents’ submission holds true in ordinary civil
The petition raises the following issues: proceedings. When this Court exercises its
constitutional power of judicial review, however, we
1. Preliminarily – have, by tradition, viewed the writs of certiorari and
prohibition as proper remedial vehicles to test the
1. Whether petitioners possess locus standi to constitutionality of statutes,19 and indeed, of acts of
bring this suit; and other branches of government.20 Issues of
constitutional import are sometimes crafted out of
statutes which, while having no bearing on the
2. Whether the writs of certiorari and prohibition
personal interests of the petitioners, carry such
are the proper remedies to assail the
relevance in the life of this nation that the Court
constitutionality of RA 9522.
inevitably finds itself constrained to take cognizance of
the case and pass upon the issues raised, non-
2. On the merits, whether RA 9522 is compliance with the letter of procedural rules
unconstitutional. notwithstanding. The statute sought to be reviewed
here is one such law.
The Ruling of the Court
RA 9522 is Not Unconstitutional RA 9522 is a
On the threshold issues, we hold that (1) petitioners Statutory Tool to Demarcate the Country’s
possess locus standi to bring this suit as citizens and Maritime Zones and Continental
(2) the writs of certiorari and prohibition are proper Shelf Under UNCLOS III, not to
remedies to test the constitutionality of RA 9522. On Delineate Philippine Territory
Petitioners submit that RA 9522 "dismembers a large of the international community of the scope of the
portion of the national territory"21 because it discards maritime space and submarine areas within which
the pre-UNCLOS III demarcation of Philippine territory States parties exercise treaty-based rights, namely, the
under the Treaty of Paris and related treaties, exercise of sovereignty over territorial waters (Article
successively encoded in the definition of national 2), the jurisdiction to enforce customs, fiscal,
territory under the 1935, 1973 and 1987 Constitutions. immigration, and sanitation laws in the contiguous
Petitioners theorize that this constitutional definition zone (Article 33), and the right to exploit the living and
trumps any treaty or statutory provision denying the non-living resources in the exclusive economic zone
Philippines sovereign control over waters, beyond the (Article 56) and continental shelf (Article 77).
territorial sea recognized at the time of the Treaty of
Paris, that Spain supposedly ceded to the United Even under petitioners’ theory that the Philippine
States. Petitioners argue that from the Treaty of Paris’ territory embraces the islands and all the waters within
technical description, Philippine sovereignty over the rectangular area delimited in the Treaty of Paris,
territorial waters extends hundreds of nautical miles the baselines of the Philippines would still have to be
around the Philippine archipelago, embracing the drawn in accordance with RA 9522 because this is the
rectangular area delineated in the Treaty of Paris.22 only way to draw the baselines in conformity with
UNCLOS III. The baselines cannot be drawn from the
Petitioners’ theory fails to persuade us. boundaries or other portions of the rectangular area
delineated in the Treaty of Paris, but from the
UNCLOS III has nothing to do with the acquisition (or "outermost islands and drying reefs of the
loss) of territory. It is a multilateral treaty regulating, archipelago."24
among others, sea-use rights over maritime zones (i.e.,
the territorial waters [12 nautical miles from the UNCLOS III and its ancillary baselines laws play no
baselines], contiguous zone [24 nautical miles from the role in the acquisition, enlargement or, as petitioners
baselines], exclusive economic zone [200 nautical claim, diminution of territory. Under traditional
miles from the baselines]), and continental shelves that international law typology, States acquire (or
UNCLOS III delimits.23 UNCLOS III was the conversely, lose) territory through occupation,
culmination of decades-long negotiations among accretion, cession and prescription,25 not by executing
United Nations members to codify norms regulating the multilateral treaties on the regulations of sea-use rights
conduct of States in the world’s oceans and submarine or enacting statutes to comply with the treaty’s terms to
areas, recognizing coastal and archipelagic States’ delimit maritime zones and continental shelves.
graduated authority over a limited span of waters and Territorial claims to land features are outside UNCLOS
submarine lands along their coasts. III, and are instead governed by the rules on general
international law.26
On the other hand, baselines laws such as RA 9522
are enacted by UNCLOS III States parties to mark-out RA 9522’s Use of the Framework of Regime of
specific basepoints along their coasts from which Islands to Determine the Maritime Zones of the KIG
baselines are drawn, either straight or contoured, to and the Scarborough Shoal, not Inconsistent
serve as geographic starting points to measure the with the Philippines’ Claim of Sovereignty
breadth of the maritime zones and continental shelf. Over these Areas
Article 48 of UNCLOS III on archipelagic States like
ours could not be any clearer: Petitioners next submit that RA 9522’s use of UNCLOS
III’s regime of islands framework to draw the baselines,
Article 48. Measurement of the breadth of the territorial and to measure the breadth of the applicable maritime
sea, the contiguous zone, the exclusive economic zone zones of the KIG, "weakens our territorial claim" over
and the continental shelf. – The breadth of the territorial that area.27Petitioners add that the KIG’s (and
sea, the contiguous zone, the exclusive economic zone Scarborough Shoal’s) exclusion from the Philippine
and the continental shelf shall be measured from archipelagic baselines results in the loss of "about
archipelagic baselines drawn in accordance with 15,000 square nautical miles of territorial waters,"
article 47. (Emphasis supplied) prejudicing the livelihood of subsistence fishermen.28 A
comparison of the configuration of the baselines drawn
Thus, baselines laws are nothing but statutory under RA 3046 and RA 9522 and the extent of maritime
mechanisms for UNCLOS III States parties to delimit space encompassed by each law, coupled with a
with precision the extent of their maritime zones and reading of the text of RA 9522 and its congressional
continental shelves. In turn, this gives notice to the rest deliberations, vis-à-vis the Philippines’ obligations
under UNCLOS III, belie this view. 1avv phi 1
The configuration of the baselines drawn under RA Further, petitioners’ argument that the KIG now lies
3046 and RA 9522 shows that RA 9522 merely outside Philippine territory because the baselines that
followed the basepoints mapped by RA 3046, save for RA 9522 draws do not enclose the KIG is negated by
at least nine basepoints that RA 9522 skipped to RA 9522 itself. Section 2 of the law commits to text the
optimize the location of basepoints and adjust the Philippines’ continued claim of sovereignty and
length of one baseline (and thus comply with UNCLOS jurisdiction over the KIG and the Scarborough Shoal:
III’s limitation on the maximum length of baselines).
Under RA 3046, as under RA 9522, the KIG and the SEC. 2. The baselines in the following areas over
Scarborough Shoal lie outside of the baselines drawn which the Philippines likewise exercises
around the Philippine archipelago. This undeniable sovereignty and jurisdiction shall be determined as
cartographic fact takes the wind out of petitioners’ "Regime of Islands" under the Republic of the
argument branding RA 9522 as a statutory Philippines consistent with Article 121 of the United
renunciation of the Philippines’ claim over the KIG, Nations Convention on the Law of the Sea (UNCLOS):
assuming that baselines are relevant for this purpose.
a) The Kalayaan Island Group as constituted under
Petitioners’ assertion of loss of "about 15,000 square Presidential Decree No. 1596 and
nautical miles of territorial waters" under RA 9522 is
similarly unfounded both in fact and law. On the b) Bajo de Masinloc, also known as Scarborough
contrary, RA 9522, by optimizing the location of Shoal. (Emphasis supplied)
basepoints, increased the Philippines’ total maritime
space (covering its internal waters, territorial sea and
Had Congress in RA 9522 enclosed the KIG and the
exclusive economic zone) by 145,216 square nautical
Scarborough Shoal as part of the Philippine
miles, as shown in the table below:29
archipelago, adverse legal effects would have ensued.
The Philippines would have committed a breach of two
Extent of maritime Extent of provisions of UNCLOS III. First, Article 47 (3) of
area using RA maritime area UNCLOS III requires that "[t]he drawing of such
3046, as amended, using RA 9522, baselines shall not depart to any appreciable extent
taking into account taking into from the general configuration of the archipelago."
the Treaty of Paris’ account Second, Article 47 (2) of UNCLOS III requires that "the
delimitation (in UNCLOS III (in length of the baselines shall not exceed 100 nautical
square nautical square nautical miles," save for three per cent (3%) of the total number
miles) miles) of baselines which can reach up to 125 nautical miles.31
Similarly, the length of one baseline that RA 3046 drew Petitioners’ argument for the invalidity of RA 9522 for
exceeded UNCLOS III’s limits. The need to shorten
1avvphi 1
[T]he amendment of the baselines law was necessary Section 2. The definition of the baselines of the
to enable the Philippines to draw the outer limits of its territorial sea of the Philippine Archipelago as provided
maritime zones including the extended continental in this Act is without prejudice to the delineation of
shelf in the manner provided by Article 47 of [UNCLOS the baselines of the territorial sea around the
III]. As defined by R.A. 3046, as amended by R.A. territory of Sabah, situated in North Borneo, over
5446, the baselines suffer from some technical which the Republic of the Philippines has acquired
deficiencies, to wit: dominion and sovereignty. (Emphasis supplied)
1. The length of the baseline across Moro Gulf UNCLOS III and RA 9522 not
(from Middle of 3 Rock Awash to Tongquil Point) is Incompatible with the Constitution’s
140.06 nautical miles x x x. This exceeds the Delineation of Internal Waters
maximum length allowed under Article 47(2) of the
[UNCLOS III], which states that "The length of such As their final argument against the validity of RA 9522,
baselines shall not exceed 100 nautical miles, petitioners contend that the law unconstitutionally
except that up to 3 per cent of the total number of "converts" internal waters into archipelagic waters,
baselines enclosing any archipelago may exceed hence subjecting these waters to the right of innocent
that length, up to a maximum length of 125 nautical and sea lanes passage under UNCLOS III, including
miles." overflight. Petitioners extrapolate that these passage
rights indubitably expose Philippine internal waters to
2. The selection of basepoints is not optimal. At nuclear and maritime pollution hazards, in violation of
least 9 basepoints can be skipped or deleted from the Constitution.38
the baselines system. This will enclose an
additional 2,195 nautical miles of water. Whether referred to as Philippine "internal waters"
under Article I of the Constitution39 or as "archipelagic
3. Finally, the basepoints were drawn from maps waters" under UNCLOS III (Article 49 [1]), the
existing in 1968, and not established by geodetic Philippines exercises sovereignty over the body of
survey methods. Accordingly, some of the points, water lying landward of the baselines, including the air
particularly along the west coasts of Luzon down to space over it and the submarine areas underneath.
Palawan were later found to be located either UNCLOS III affirms this:
Article 49. Legal status of archipelagic waters, of the The fact that for archipelagic States, their archipelagic
air space over archipelagic waters and of their bed and waters are subject to both the right of innocent passage
subsoil. – and sea lanes passage45 does not place them in lesser
footing vis-à-vis continental coastal States which are
1. The sovereignty of an archipelagic State subject, in their territorial sea, to the right of innocent
extends to the waters enclosed by the passage and the right of transit passage through
archipelagic baselines drawn in accordance with international straits. The imposition of these passage
article 47, described as archipelagic waters, rights through archipelagic waters under UNCLOS III
regardless of their depth or distance from the was a concession by archipelagic States, in exchange
coast. for their right to claim all the waters landward of their
baselines, regardless of their depth or distance from
2. This sovereignty extends to the air space the coast, as archipelagic waters subject to
over the archipelagic waters, as well as to their their territorial sovereignty. More importantly, the
bed and subsoil, and the resources contained recognition of archipelagic States’ archipelago and the
therein. waters enclosed by their baselines as one cohesive
entity prevents the treatment of their islands as
separate islands under UNCLOS III.46 Separate islands
xxxx
generate their own maritime zones, placing the waters
between islands separated by more than 24 nautical
4. The regime of archipelagic sea lanes passage miles beyond the States’ territorial sovereignty,
established in this Part shall not in other subjecting these waters to the rights of other States
respects affect the status of the archipelagic under UNCLOS III.47
waters, including the sea lanes, or the exercise
by the archipelagic State of its sovereignty over
Petitioners’ invocation of non-executory constitutional
such waters and their air space, bed and
provisions in Article II (Declaration of Principles and
subsoil, and the resources contained therein.
State Policies)48 must also fail. Our present state of
(Emphasis supplied)
jurisprudence considers the provisions in Article II as
mere legislative guides, which, absent enabling
The fact of sovereignty, however, does not preclude legislation, "do not embody judicially enforceable
the operation of municipal and international law norms constitutional rights x x x."49 Article II provisions serve
subjecting the territorial sea or archipelagic waters to as guides in formulating and interpreting implementing
necessary, if not marginal, burdens in the interest of legislation, as well as in interpreting executory
maintaining unimpeded, expeditious international provisions of the Constitution. Although Oposa v.
navigation, consistent with the international law Factoran50 treated the right to a healthful and balanced
principle of freedom of navigation. Thus, domestically, ecology under Section 16 of Article II as an exception,
the political branches of the Philippine government, in the present petition lacks factual basis to substantiate
the competent discharge of their constitutional powers, the claimed constitutional violation. The other
may pass legislation designating routes within the provisions petitioners cite, relating to the protection of
archipelagic waters to regulate innocent and sea lanes marine wealth (Article XII, Section 2, paragraph 251 )
passage.40 Indeed, bills drawing nautical highways for and subsistence fishermen (Article XIII, Section 752 ),
sea lanes passage are now pending in Congress.41 are not violated by RA 9522.
In the absence of municipal legislation, international In fact, the demarcation of the baselines enables the
law norms, now codified in UNCLOS III, operate to Philippines to delimit its exclusive economic zone,
grant innocent passage rights over the territorial sea or reserving solely to the Philippines the exploitation of all
archipelagic waters, subject to the treaty’s limitations living and non-living resources within such zone. Such
and conditions for their exercise.42 Significantly, the a maritime delineation binds the international
right of innocent passage is a customary international community since the delineation is in strict observance
law,43 thus automatically incorporated in the corpus of of UNCLOS III. If the maritime delineation is contrary to
Philippine law.44 No modern State can validly invoke its UNCLOS III, the international community will of course
sovereignty to absolutely forbid innocent passage that reject it and will refuse to be bound by it.
is exercised in accordance with customary
international law without risking retaliatory measures
UNCLOS III favors States with a long coastline like the
from the international community.
Philippines. UNCLOS III creates a sui generis maritime
space – the exclusive economic zone – in waters
previously part of the high seas. UNCLOS III grants
new rights to coastal States to exclusively exploit the
resources found within this zone up to 200 nautical TERESITA J.
PRESBITERO J.
miles.53 UNCLOS III, however, preserves the LEONARDO-DE
VELASCO, JR.
traditional freedom of navigation of other States that CASTRO
Associate Justice
attached to this zone beyond the territorial sea before Associate Justice
UNCLOS III.
DIOSDADO M.
ARTURO D. BRION
RA 9522 and the Philippines’ Maritime Zones PERALTA
Associate Justice
Associate Justice
Petitioners hold the view that, based on the permissive
text of UNCLOS III, Congress was not bound to pass LUCAS P. MARIANO C. DEL
RA 9522.54 We have looked at the relevant provision of BERSAMIN CASTILLO
UNCLOS III55 and we find petitioners’ reading Associate Justice Associate Justice
plausible. Nevertheless, the prerogative of choosing
this option belongs to Congress, not to this Court.
ROBERTO A. MARTIN S.
Moreover, the luxury of choosing this option comes at
ABAD VILLARAMA, JR.
a very steep price. Absent an UNCLOS III compliant
Associate Justice Associate Justice
baselines law, an archipelagic State like the Philippines
will find itself devoid of internationally acceptable
baselines from where the breadth of its maritime zones JOSE PORTUGAL JOSE C.
and continental shelf is measured. This is recipe for a PEREZ MENDOZA
two-fronted disaster: first, it sends an open invitation to Associate Justice Associate Justice
the seafaring powers to freely enter and exploit the
resources in the waters and submarine areas around
our archipelago; and second, it weakens the country’s MARIA LOURDES P. A. SERENO
case in any international dispute over Philippine Associate Justice
maritime space. These are consequences Congress
wisely avoided. CERTIFICATION
The enactment of UNCLOS III compliant baselines law Pursuant to Section 13, Article VIII of the Constitution,
for the Philippine archipelago and adjacent areas, as I certify that the conclusions in the above Decision had
embodied in RA 9522, allows an internationally- been reached in consultation before the case was
recognized delimitation of the breadth of the assigned to the writer of the opinion of the Court.
Philippines’ maritime zones and continental shelf. RA
9522 is therefore a most vital step on the part of the RENATO C. CORONA
Philippines in safeguarding its maritime zones, Chief Justice
consistent with the Constitution and our national
interest.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
ONCURRING OPINION archipelagic state, is Article 47 of UNCLOS III which
deals with baselines:
VELASCO, JR., J.:
1. An archipelagic State may draw straight
I concur with the ponencia and add the following archipelagic baselines joining the outermost points
complementary arguments and observations: of the outermost islands and drying reefs of the
archipelago provided that within such baselines are
A statute is a product of hard work and earnest studies included the main islands and an area in which the
of Congress to ensure that no constitutional provision, ratio of the area of the water to the area of the land,
prescription or concept is infringed. Withal, before a including atolls, is between 1 to 1 and 9 to 1.
law, in an appropriate proceeding, is nullified, an 2. The length of such baseline shall not exceed 100
unequivocal breach of, or a clear conflict with, the nautical miles, except that up to 3 per cent of the
Constitution must be demonstrated in such a way as to total number of baselines enclosing any
leave no doubt in the mind of the Court.1 In the same archipelago may exceed that length, up to a
token, if a law runs directly afoul of the Constitution, the maximum length of 125 nautical miles.
Court’s duty on the matter should be clear and simple: 3. The drawing of such baselines shall not depart
Pursuant to its judicial power and as final arbiter of all to any appreciable extent from the general
legal questions,2 it should strike such law down, configuration of the archipelago.
however laudable its purpose/s might be and xxxx
regardless of the deleterious effect such action may 9. The archipelagic State shall give due publicity to
carry in its wake. such charts or lists of geographical co-ordinates
and shall deposit a copy of each such chart or list
with the Secretary-General of the United
Challenged in these proceedings is the constitutionality
Nations.6 (Emphasis added.)
of Republic Act (RA 9522) entitled "An Act to Amend
Certain Provisions of [RA] 3046, as Amended by [RA]
5446 to Define the Archipelagic Baselines Of The To obviate, however, the possibility that certain
Philippines and for Other Purposes." For perspective, UNCLOS III baseline provisions would, in their
RA 3046, "An Act to Define the Baselines of the implementation, undermine its sovereign and/or
Territorial Sea of the Philippines, was enacted in 1961 jurisdictional interests over what it considers its
to comply with the United Nations Convention on the territory,7 the Philippines, when it signed UNCLOS III
Law of the Sea (UNCLOS) I. Eight years later, RA 5446 on December 10, 1982, made the following
was enacted to amend typographical errors relating to "Declaration" to said treaty:
coordinates in RA 3046. The latter law also added a
provision asserting Philippine sovereignty over Sabah. The Government of the Republic of the Philippines
[GRP] hereby manifests that in signing the 1982 United
As its title suggests, RA 9522 delineates archipelagic Nations Convention on the Law of the Sea, it does so
baselines of the country, amending in the process the with the understandings embodied in this declaration,
old baselines law, RA 3046. Everybody is agreed that made under the provisions of Article 310 of the
RA 9522 was enacted in response to the country’s Convention, to wit:
commitment to conform to some 1982 Law of the Sea
Convention (LOSC) or UNCLOS III provisions to define The signing of the Convention by the [GRP] shall not in
new archipelagic baselines through legislation, the any manner impair or prejudice the sovereign rights of
Philippines having signed3 and eventually ratified4 this the [RP] under and arising from the Constitution of the
multilateral treaty. The Court can take judicial notice Philippines;
that RA 9522 was registered and deposited with the
UN on April 4, 2009. Such signing shall not in any manner affect the
sovereign rights of the [RP] as successor of the United
As indicated in its Preamble,5 1982 LOSC aims, among States of America [USA], under and arising out of the
other things, to establish, with due regard for the Treaty of Paris between Spain and the United States
sovereignty of all States, "a legal order for the seas and of America of December 10, 1898, and the Treaty of
oceans which will facilitate international Washington between the [USA] and Great Britain of
communication, and will promote the peaceful uses of January 2, 1930;
the seas and oceans." One of the measures to attain
the order adverted to is to have a rule on baselines. Of xxxx
particular relevance to the Philippines, as an
Such signing shall not in any manner impair or the territorial sea, the air space, the subsoil, the insular
prejudice the sovereignty of the [RP] over any territory shelves, and other submarine areas over which the
over which it exercises sovereign authority, such as the Philippines has sovereignty or jurisdiction. The waters
Kalayaan Islands, and the waters appurtenant thereto; around, between, and connecting the islands of the
archipelago, regardless of their breadth and
The Convention shall not be construed as amending in dimensions, form part of the internal waters of the
any manner any pertinent laws and Presidential Philippines. (Emphasis added.)
Decrees or Proclamations of the Republic of the
Philippines. The [GRP] maintains and reserves the As may be noted both constitutions speak of the
right and authority to make any amendments to such "Philippine archipelago," and, via the last sentence of
laws, decrees or proclamations pursuant to the their respective provisions, assert the country’s
provisions of the Philippine Constitution; adherence to the "archipelagic principle." Both
constitutions divide the national territory into two main
The provisions of the Convention on archipelagic groups: (1) the Philippine archipelago and (2) other
passage through sea lanes do not nullify or impair the territories belonging to the Philippines. So what or
sovereignty of the Philippines as an archipelagic state where is Philippine archipelago contemplated in the
over the sea lanes and do not deprive it of authority to 1973 and 1987 Constitutions then? Fr. Bernas answers
enact legislation to protect its sovereignty the poser in the following wise:
independence and security;
Article I of the 1987 Constitution cannot be fully
The concept of archipelagic waters is similar to the understood without reference to Article I of the 1973
concept of internal waters under the Constitution of the Constitution. x x x
Philippines, and removes straits connecting these
waters with the economic zone or high sea from the xxxx
rights of foreign vessels to transit passage for
international navigation.8 (Emphasis added.) To understand [the meaning of national territory as
comprising the Philippine archipelago], one must look
Petitioners challenge the constitutionality of RA 9522 into the evolution of [Art. I of the 1973 Constitution]
on the principal ground that the law violates Section 1, from its first draft to its final form.
Article I of the 1987 Constitution on national territory
which states: Section 1 of the first draft submitted by the Committee
on National Territory almost literally reproduced Article
Section 1. The national territory comprises the I of the 1935 Constitution x x x. Unlike the 1935 version,
Philippine archipelago, with all the islands and waters however, the draft designated the Philippines not
embraced therein, and all other territories over which simply as the Philippines but as "the Philippine
the Philippines has sovereignty or jurisdiction, archipelago.10 In response to the criticism that the
consisting of its terrestrial, fluvial and aerial domains, definition was colonial in tone x x x, the second draft
including its territorial sea, the seabed, the subsoil, the further designated the Philippine archipelago, as the
insular shelves, and other submarine areas. The historic home of the Filipino people from its beginning.11
waters around, between, and connecting the islands of
the archipelago, regardless of their breadth and After debates x x x, the Committee reported out a final
dimensions, form part of the internal waters of the draft, which became the initially approved version: "The
Philippines. (Emphasis supplied.) national territory consists of the Philippine archipelago
which is the ancestral home of the Filipino people and
According to Fr. Joaquin Bernas, S.J., himself a which is composed of all the islands and waters
member of the 1986 Constitutional Commission which embraced therein…"
drafted the 1987 Constitution, the aforequoted Section
1 on national territory was "in substance a copy of its What was the intent behind the designation of the
1973 counterpart."9 Art. I of the 1973 Constitution Philippines as an "archipelago"? x x x Asked by
reads: Delegate Roselller Lim (Zamboanga) where this
archipelago was, Committee Chairman Quintero
Section 1. The national territory comprises the answered that it was the area delineated in the Treaty
Philippine archipelago, with all the islands and waters of Paris. He said that objections to the colonial
embraced therein, and all other territories belonging to implication of mentioning the Treaty of Paris was
the Philippines by historic right or legal title, including
responsible for the omission of the express mention of conclusion is abundantly evident: the "Philippine
the Treaty of Paris. archipelago" of the 1987 Constitution is the same
"Philippine archipelago" referred to in Art. I of the 1973
Report No. 01 of the Committee on National Territory Constitution which in turn corresponds to the territory
had in fact been explicit in its delineation of the defined and described in Art. 1 of the 1935
expanse of this archipelago. It said: Constitution,13 which pertinently reads:
Now if we plot on a map the boundaries of this Section 1. The Philippines comprises all the territory
archipelago as set forth in the Treaty of Paris, a huge ceded to the [US] by the Treaty of Paris concluded
or giant rectangle will emerge, measuring about 600 between the [US] and Spain on the tenth day of
miles in width and 1,200 miles in length. Inside this December, [1898], the limits of which are set forth in
giant rectangle are the 7,100 islands comprising the Article III of said treaty, together with all the islands in
Philippine Islands. From the east coast of Luzon to the the treaty concluded at Washington, between the [US]
eastern boundary of this huge rectangle in the Pacific and Spain on November [7, 1900] and the treaty
Ocean, there is a distance of over 300 miles. From the concluded between the [US] and Great Britain x x x.
west coast of Luzon to the western boundary of this
giant rectangle in the China sea, there is a distance of While the Treaty of Paris is not mentioned in both the
over 150 miles. 1973 and 1987 Constitutions, its mention, so the
nationalistic arguments went, being "a repulsive
When the [US] Government enacted the Jones Law, reminder of the indignity of our colonial past,"14 it is at
the Hare-Hawes Cutting Law and the Tydings McDuffie once clear that the Treaty of Paris had been utilized as
Law, it in reality announced to the whole world that it key reference point in the definition of the national
was turning over to the Government of the Philippine territory.
Islands an archipelago (that is a big body of water
studded with islands), the boundaries of which On the other hand, the phrase "all other territories over
archipelago are set forth in Article III of the Treaty of which the Philippines has sovereignty or jurisdiction,"
Paris. It also announced to the whole world that the found in the 1987 Constitution, which replaced the
waters inside the giant rectangle belong to the deleted phrase "all territories belonging to the
Philippines – that they are not part of the high seas. Philippines by historic right or legal title"15 found in the
1973 Constitution, covers areas linked to the
When Spain signed the Treaty of Paris, in effect she Philippines with varying degrees of certainty.16 Under
announced to the whole world that she was ceding to this category would fall: (a) Batanes, which then 1971
the [US] the Philippine archipelago x x x, that this Convention Delegate Eduardo Quintero, Chairperson
archipelago was bounded by lines specified in the of the Committee on National Territory, described as
treaty, and that the archipelago consisted of the huge belonging to the Philippines in all its history;17 (b)
body of water inside the boundaries and the islands Sabah, over which a formal claim had been filed, the
inside said boundaries. so-called Freedomland (a group of islands known as
Spratleys); and (c) any other territory, over which the
The delineation of the extent of the Philippine Philippines had filed a claim or might acquire in the
archipelago must be understood in the context of the future through recognized modes of acquiring
modifications made both by the Treaty of Washington territory.18 As an author puts it, the deletion of the
of November 7, 1900, and of the Convention of words "by historic right or legal title" is not to be
January 12, 1930, in order to include the Islands of interpreted as precluding future claims to areas over
Sibutu and of Cagayan de Sulu and the Turtle and which the Philippines does not actually exercise
Mangsee Islands. However, x x x the definition of the sovereignty.19
archipelago did not include the Batanes group[, being]
outside the boundaries of the Philippine archipelago as Upon the foregoing perspective and going into
set forth in the Treaty of Paris. In literal terms, specifics, petitioners would have RA 9522 stricken
therefore, the Batanes islands would come not under down as unconstitutional for the reasons that it
the Philippine archipelago but under the phrase "all deprives the Philippines of what has long been
other territories belong to the Philippines."12 x x x established as part and parcel of its national territory
(Emphasis added.) under the Treaty of Paris, as supplemented by the
aforementioned 1900 Treaty of Washington or, to the
From the foregoing discussions on the deliberations of same effect, revises the definition on or dismembers
the provisions on national territory, the following the national territory. Pushing their case, petitioners
argue that the constitutional definition of the national
territory cannot be remade by a mere statutory act.20 As 141,531,000 hectares inside the base lines, total
another point, petitioners parlay the theory that the law 93,742,275 hectares as a total gain in the waters under
in question virtually weakens the country’s territorial Philippine jurisdiction.
claim over the Kalayaan Island Group (KIG) and
Sabah, both of which come under the category of From a pragmatic standpoint, therefore, the advantage
"other territories" over the Philippines has sovereignty to our country and people not only in terms of the legal
or jurisdiction. Petitioners would also assail the law on unification of land and waters of the archipelago in the
grounds related to territorial sea lanes and internal light of international law, but also in terms of the vast
waters transit passage by foreign vessels. resources that will come under the dominion and
jurisdiction of the Republic of the Philippines, your
It is remarkable that petitioners could seriously argue Committee on Foreign Affairs does not hesitate to ask
that RA 9522 revises the Philippine territory as defined this august Body to concur in the Convention by
in the Constitution, or worse, constitutes an abdication approving the resolution before us today.
of territory.
May I say it was the unanimous view of delegations at
It cannot be over-emphasized enough that RA 9522 is the Conference on the Law of the Sea that
a baseline law enacted to implement the 1982 LOSC, archipelagos are among the biggest gainers or
which in turn seeks to regulate and establish an orderly beneficiaries under the Convention on the Law of the
sea use rights over maritime zones. Or as the ponencia Sea.
aptly states, RA 9522 aims to mark-out specific base
points along the Philippine coast from which baselines Lest it be overlooked, the constitutional provision on
are drawn to serve as starting points to measure the national territory, as couched, is broad enough to
breadth of the territorial sea and maritime zones.21 The encompass RA 9522’s definition of the archipelagic
baselines are set to define the sea limits of a state, be baselines. To reiterate, the laying down of baselines is
it coastal or archipelagic, under the UNCLOS III not a mode of acquiring or asserting ownership a
regime. By setting the baselines to conform to the territory over which a state exercises sovereignty. They
prescriptions of UNCLOS III, RA 9522 did not are drawn for the purpose of defining or establishing
surrender any territory, as petitioners would insist at the maritime areas over which a state can exercise
every turn, for UNCLOS III is concerned with setting sovereign rights. Baselines are used for fixing starting
order in the exercise of sea-use rights, not the point from which the territorial belt is measured
acquisition or cession of territory. And let it be noted seawards or from which the adjacent maritime waters
that under UNCLOS III, it is recognized that countries are measured. Thus, the territorial sea, a marginal belt
can have territories outside their baselines. Far from of maritime waters, is measured from the baselines
having a dismembering effect, then, RA 9522 has in a extending twelve (12) nautical miles
limited but real sense increased the country’s maritime outward.23 Similarly, Art. 57 of the 1982 LOSC provides
boundaries. How this situation comes about was that the Exclusive Economic Zone (EEZ) "shall not
extensively explained by then Minister of State and extend beyond 200 nautical miles from the baselines
head of the Philippine delegation to UNCLOS III Arturo from which the breadth of the territorial sea is
Tolentino in his sponsorship speech22on the measured."24 Most important to note is that the
concurrence of the Batasang Pambansa with the baselines indicated under RA 9522 are derived from
LOSC: Art. 47 of the 1982 LOSC which was earlier quoted.