01 Magallona v. Ermita

8/6/22, 11:11 PM SUPREME COURT REPORTS ANNOTATED VOLUME 655
G.R. No. 187167. August 16, 2011. *
PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY-LIST

REP. RISA HONTIVEROS, PROF. HARRY C. ROQUE, JR., AND
UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW
STUDENTS, ALITHEA BARBARA ACAS, VOLTAIRE
ALFERES, CZARINA MAY ALTEZ, FRANCIS ALVIN ASILO,
SHERYL BALOT, RUBY AMOR BARRACA, JOSE JAVIER
BAUTISTA, ROMINA BERNARDO, VALERIE PAGASA
BUENAVENTURA, EDAN MARRI CAÑETE, VANN ALLEN
DELA CRUZ, RENE DELORINO, PAULYN MAY DUMAN,
SHARON ESCOTO, RODRIGO FAJARDO III, GIRLIE FERRER,
RAOULLE OSEN FERRER, CARLA REGINA GREPO, ANNA
MARIE CECILIA GO, IRISH KAY KALAW, MARY ANN JOY
LEE, MARIA LUISA MANALAYSAY, MIGUEL RAFAEL
MUSNGI, MICHAEL OCAMPO, JAKLYN HANNA PINEDA,
WILLIAM RAGAMAT, MARICAR RAMOS, ENRIK FORT
REVILLAS, JAMES MARK TERRY RIDON, JOHANN FRANTZ
RIVERA IV, CHRISTIAN RIVERO, DIANNE MARIE ROA,
NICHOLAS SANTIZO, MELISSA CHRISTINA SANTOS,
CRISTINE MAE TABING, VANESSA ANNE TORNO, MARIA
ESTER VANGUARDIA, and MARCELINO VELOSO III,
petitioners, vs. HON. EDUARDO ERMITA, IN HIS CAPACITY
AS EXECUTIVE SECRETARY, HON. ALBERTO ROMULO, IN
HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF
_______________
* EN BANC.
477
VOL. 655, AUGUST 16, 2011 477

Magallona vs. Ermita
FOREIGN AFFAIRS, HON. ROLANDO ANDAYA, IN HIS

CAPACITY AS SECRETARY OF THE DEPARTMENT OF
BUDGET AND MANAGEMENT, HON. DIONY VENTURA, IN
HIS CAPACITY AS ADMINISTRATOR OF THE NATIONAL
MAPPING & RESOURCE INFORMATION AUTHORITY, and
HON. HILARIO DAVIDE, JR., IN HIS CAPACITY AS
REPRESENTATIVE OF THE PERMANENT MISSION OF THE
REPUBLIC OF THE PHILIPPINES TO THE UNITED NATIONS,
respondents.
United Nations Convention on the Law of the Sea (UNCLOS III);

UNCLOS III has nothing to do with the acquisition or loss of territory.—
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
https://central.com.ph/sfsreader/session/0000018273b6b413719b0a33000d00d40059004a/t/?o=False 1/37
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.
Archipelagic Baselines of the Philippines (Republic Act No. 9522);
Baselines laws such as RA 9522 are enacted by United Nations Convention
on the Law of the Sea (UNCLOS III) States parties to mark-out specific
basepoints along their coasts from which baselines are drawn, either
straight or contoured, to serve as geographic starting points to measure the
breadth of the maritime zones and continental shelf.—Baselines laws such
as RA 9522 are enacted by UNCLOS III States parties to mark-out specific
basepoints along their coasts from which baselines are drawn, either straight
or contoured, to serve as geographic starting points to measure the breadth
of the maritime zones and continental shelf. Article 48 of UNCLOS III on
archipelagic States like ours could not be any clearer: Article 48.
Measurement of the breadth of the territorial sea, the contiguous zone, the
exclusive economic zone and the continental shelf.—The breadth of the
territorial sea, the contiguous zone, the exclusive economic zone and the
continental shelf shall be measured from archi-
478
478 SUPREME COURT REPORTS ANNOTATED
pelagic baselines drawn in accordance with article 47. (Emphasis supplied)

Same; Baselines laws are nothing but statutory mechanisms for United
Nations Convention on the Law of the Sea (UNCLOS III) States parties to
delimit with precision the extent of their maritime zones and continental
shelves.—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).
Same; RA 9522 increased the Philippines’ total maritime space by
145,216 square nautical miles.—Petitioners’ assertion of loss of “about
15,000 square nautical miles of territorial waters” under RA 9522 is
similarly unfounded both in fact and law. On the contrary, RA 9522, by
optimizing the location of basepoints, increased the Philippines’ total
maritime space (covering its internal waters, territorial sea and exclusive
economic zone) by 145,216 square nautical miles.
Congress’ decision to classify the Kalayaan Island Group (KIG) and the
Scarborough Shoal as ‘Regime[s] of Islands’ manifests the Philippine
State’s responsible observance of its pacta sunt servanda obligation under
UNCLOS III.—Far from surrendering the Philippines’ claim over the KIG
and the Scarborough Shoal, Congress’ decision to classify the KIG and the
Scarborough Shoal as “‘Regime[s] of Islands’ under the Republic of the
Philippines consistent with Article 121” of UNCLOS III manifests the
Philippine State’s responsible observance of its pacta sunt servanda
obligation under UNCLOS III. Under Article 121 of UNCLOS III, any
“naturally formed area of land, surrounded by water, which is above water
at high tide,” such as portions of the KIG, qualifies under the category
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VOL. 655, AUGUST 16, 2011 479
of “regime of islands,” whose islands generate their own applicable

maritime zones.
Same; 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.—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.
Same; United Nations Convention on the Law of the Sea (UNCLOS III)
creates a sui generis maritime space—the exclusive economic zone—in
waters previously part of the high seas.—UNCLOS III favors States with a
long coastline like the 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 miles.
UNCLOS III, however, preserves the traditional freedom of navigation of
other States that attached to this zone beyond the territorial sea before
UNCLOS III.
Same; Absent an United Nations Convention on the Law of the Sea
(UNCLOS III) compliant baselines law, an archipelagic State like the
Philippines will find itself devoid of internationally acceptable baselines
from where the breadth of its maritime zones and continental shelf is
measured.—Absent an UNCLOS III compliant baselines law, an
archipelagic State like the Philippines will find itself devoid of
internationally acceptable baselines from where the breadth of its maritime
zones and continental shelf is measured. This is recipe for a two-fronted
disaster: first, it sends an open invitation to 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 case in any international
dispute over Philippine maritime space. These are consequences Congress
wisely avoided.
480

Same; Archipelagic Baselines of the Philippines (Republic Act No.
9522); The enactment of United Nations Convention on the Law of the Sea
(UNCLOS III) compliant baselines law for the Philippine archipelago and
adjacent areas, as embodied in RA 9522, allows an internationally-
recognized delimitation of the breadth of the Philippines’ maritime zones
and continental shelf.—The enactment of UNCLOS III compliant baselines
law for the Philippine archipelago and adjacent areas, as embodied in RA
9522, allows an internationally-recognized delimitation of the breadth of the
Philippines’ maritime zones and continental shelf. RA 9522 is therefore a
most vital step on the part of the Philippines in safeguarding its maritime
zones, consistent with the Constitution and our national interest.
VELASCO, JR., J., Separate Concurring Opinion:
Archipelagic Baselines of the Philippines (Republic Act No. 9522)—View
that by setting the baselines to conform to the prescriptions of UNCLOS III,
RA 9522 did not surrender any territory for UNCLOS III is concerned with
setting order in the exercise of sea-use rights, not the acquisition or cession
of territory.—The baselines are set to define the sea limits of a state, be it
coastal or archipelagic, under the UNCLOS III regime. By setting the
baselines to conform to the prescriptions of UNCLOS III, RA 9522 did not
surrender any territory, as petitioners would insist at every turn, for
UNCLOS III is concerned with setting order in the exercise of sea-use
rights, not the acquisition or cession of territory. And let it be noted that
under UNCLOS III, it is recognized that countries can have territories
outside their baselines. Far from having a dismembering effect, then, RA
9522 has in a limited but real sense increased the country’s maritime
boundaries.
Same; View that the laying down of baselines is not a mode of
acquiring or asserting ownership a territory over which a state exercises
sovereignty.—The laying down of baselines is not a mode of acquiring or
asserting ownership a territory over which a state exercises sovereignty.
They are drawn for the purpose of defining or establishing the maritime
areas over which a state can exercise sovereign rights. Baselines are used for
fixing starting point from which the territorial belt is measured seawards or
from which the adjacent maritime waters are measured.
481
VOL. 655, AUGUST 16, 2011 481

Same; View that having the Kalayaan Island Group (KIG) and the
Scarborough Shoal outside Philippine baselines will not diminish our
sovereignty over these areas.—Baselines are used to measure the breadth of
the territorial sea, the contiguous zone, the exclusive economic zone and the
continental shelf. Having KIG and the Scarborough Shoal outside Philippine
baselines will not diminish our sovereignty over these areas.
Same; View that Republic Act (RA) No. 9522 simply seeks to conform
to our international agreement on the setting of baselines and provides
nothing about the designation of archipelagic sea-lane passage or the
regulation of innocent passage within our waters.—A cursory reading of
RA 9522 would belie petitioners’ posture. In context, RA 9522 simply seeks
to conform to our international agreement on the setting of baselines and
provides nothing about the designation of archipelagic sea-lane passage or
the regulation of innocent passage within our waters. Again, petitioners
have read into the amendatory RA 9522 something not intended.
Same; View that the landward waters embraced within the baselines
determined by Republic Act (RA) No. 9522 form part of the internal waters
of the Philippines.—The Philippines maintains the sui generis character of
our archipelagic waters as equivalent to the internal waters of
continental coastal states. In other words, the landward waters embraced
within the baselines determined by RA 9522, i.e., all waters around,
between, and connecting the islands of the archipelago, regardless of their
breadth and dimensions, form part of the internal waters of the Philippines.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari and

Prohibition.
The facts are stated in the opinion of the Court.
Harry L. Roque, Jr. Joel Ruiz Butuyan and Rommel Regalado
Bagares for petitioners.
The Solicitor General for respondents.
482

CARPIO, J.:
The Case
This original action for the writs of certiorari and prohibition

assails the constitutionality of Republic Act No. 95221 (RA 9522)
adjusting the country’s archipelagic baselines and classifying the
baseline regime of nearby territories.
The Antecedents
In 1961, Congress passed Republic Act No. 3046 (RA 3046)2

demarcating the maritime baselines of the Philippines as an
archipelagic State.3 This law followed the framing of the Convention
on the Territorial Sea and the Contiguous Zone in 1958 (UNCLOS
I),4 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]) correc-
_______________
1 Entitled “An Act to Amend Certain Provisions of Republic Act No. 3046, as
Amended by Republic Act No. 5446, to Define the Archipelagic Baselines of the
Philippines, and for Other Purposes.”
2 Entitled “An Act to Define the Baselines of the Territorial Sea of the
Philippines.”
3 The third “Whereas Clause” of RA 3046 expresses the import of treating the
Philippines as an archipelagic State:
“WHEREAS, all the waters around, between, and connecting the various islands
of the Philippine archipelago, irrespective of their width or dimensions, have always
been considered as necessary appurtenances of the land territory, forming part of the
inland waters of the Philippines.”
4 One of the four conventions framed during the first United Nations Convention
on the Law of the Sea in Geneva, this treaty, excluding the Philippines, entered into
force on 10 September 1964.
483
VOL. 655, AUGUST 16, 2011 483
ting 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),5 which
the Philippines ratified on 27 February 1984.6 Among others,
UNCLOS III prescribes the water-land ratio, length, and contour of
baselines of archipelagic States like the Philippines7 and sets the
deadline for the filing of application for the extended continental
shelf.8 Complying
_______________
5 UNCLOS III entered into force on 16 November 1994.
6 The Philippines signed the treaty on 10 December 1982.
7 Article 47, paragraphs 1-3, provide:
1. An archipelagic State may draw straight archipelagic baselines
joining the outermost points of the outermost islands and drying reefs of the
archipelago provided that within such baselines are included the main islands
and an area in which the ratio of the area of the water to the area of the land,
including atolls, is between 1 to 1 and 9 to 1.
2. The length of such baselines shall not exceed 100 nautical miles,
except that up to 3 per cent of the total number of baselines enclosing any
archipelago may exceed that length, up to a maximum length of 125 nautical
miles.
3. The drawing of such baselines shall not depart to any appreciable
extent from the general configuration of the archipelago. (Emphasis supplied)
xxxx
8 UNCLOS III entered into force on 16 November 1994. The deadline for the
filing of application is mandated in Article 4, Annex II: “Where a coastal State
intends to establish, in accordance with article 76, the outer limits of its continental
shelf beyond 200 nautical miles, it shall submit particulars of such limits to the
Commission along with supporting scientific and technical data as soon as possible
but in any case within 10 years of the entry into force of this Convention for that
State. The coastal State shall at the same time
484

with these requirements, RA 9522 shortened one baseline, optimized

the location of some basepoints around the Philippine archipelago
and 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.
Petitioners, professors of law, law students and a legislator, in
their respective capacities as “citizens, taxpayers or x x x
legislators,”9 as the case may be, assail the constitutionality of RA
9522 on two principal grounds, namely: (1) RA 9522 reduces
Philippine maritime territory, and logically, the reach of the
Philippine state’s sovereign power, in violation of Article 1 of the
1987 Constitution,10 embodying the terms of the Treaty of Paris11
and ancillary treaties,12 and (2) RA 9522
_______________
give the names of any Commission members who have provided it with scientific
and technical advice.” (Underscoring supplied)
In a subsequent meeting, the States parties agreed that for States which became
bound by the treaty before 13 May 1999 (such as the Philippines) the ten-year period
will be counted from that date. Thus, RA 9522, which took effect on 27 March 2009,
barely met the deadline.
9 Rollo, p. 34.
10 Which provides: “The national territory comprises the Philippine archipelago,
with all the islands and waters embraced therein, and all other territories over which
the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and
aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves,
and other submarine areas. The waters around, between, and connecting the islands of
the archipelago, regardless of their breadth and dimensions, form part of the internal
waters of the Philippines.”
11 Entered into between the Unites States and Spain on 10 December 1898
following the conclusion of the Spanish-American War. Under the terms of the treaty,
Spain ceded to the United States “the archipelago known as the Philippine Islands”
lying within its technical description.
12 The Treaty of Washington, between Spain and the United States (7 November
1900), transferring to the US the islands of
485
VOL. 655, AUGUST 16, 2011 485

opens the country’s waters landward of the baselines to maritime

passage by all vessels and aircrafts, undermining Philippine
sovereignty and national security, contravening the country’s
nuclear-free policy, and damaging marine resources, in violation of
relevant constitutional provisions.13
In addition, petitioners contend that RA 9522’s treatment of the
KIG as “regime of islands” not only results in the loss of a large
maritime area but also prejudices the livelihood of subsistence
fishermen.14 To buttress their argument of territorial diminution,
petitioners facially attack RA 9522 for what it excluded and
included—its failure to reference either the Treaty of Paris or Sabah
and its use of UNCLOS III’s framework of regime of islands to
determine the maritime zones of the KIG and the Scarborough
Shoal.
Commenting on the petition, respondent officials raised threshold
issues questioning (1) the petition’s compliance with the case or
controversy requirement for judicial review grounded on petitioners’
alleged lack of locus standi and (2) the propriety of the writs of
certiorari and prohibition to assail the constitutionality of RA 9522.
On the merits, respondents defended RA 9522 as the country’s
compliance with the terms of UNCLOS III, preserving Philippine
territory over the KIG or Scarborough Shoal. Respondents add that
RA 9522 does not undermine the country’s security, environment
and economic interests or relinquish the Philippines’ claim over
Sabah.
Respondents also question the normative force, under
international law, of petitioners’ assertion that what Spain ceded to
the United States under the Treaty of Paris were the
_______________
Cagayan, Sulu, and Sibutu and the US-Great Britain Convention (2 January 1930)
demarcating boundary lines between the Philippines and North Borneo.
13 Article II, Section 7, Section 8, and Section 16.
14 Allegedly in violation of Article XII, Section 2, paragraph 2 and Article XIII,
Section 7 of the Constitution.
486

islands and all the waters found within the boundaries of the
rectangular area drawn under the Treaty of Paris.
We left unacted petitioners’ prayer for an injunctive writ.
The Issues
The petition raises the following issues:

A. Preliminarily—
1) Whether petitioners possess locus standi to bring this
suit; and
2) Whether the writs of certiorari and prohibition are the
proper remedies to assail the constitutionality of RA
9522.
B. On the merits, whether RA 9522 is unconstitutional.
The Ruling of the Court
On the threshold issues, we hold that (1) petitioners possess locus

standi to bring this suit as citizens and (2) the writs of certiorari and
prohibition are proper remedies to test the constitutionality of RA
9522. On the merits, we find no basis to declare RA 9522
unconstitutional.
On the Threshold Issues
Petitioners Possess Locus

Standi as Citizens
Petitioners themselves undermine their assertion of locus standi
as legislators and taxpayers because the petition alleges neither
infringement of legislative prerogative15 nor
_______________
15 Kilosbayan, Inc. v. Morato, 320 Phil. 171, 186; 246 SCRA 540 (1995).
487
VOL. 655, AUGUST 16, 2011 487

misuse of public funds,16 occasioned by the passage and

implementation of RA 9522. Nonetheless, we recognize petitioners’
locus standi as citizens with constitutionally sufficient interest in the
resolution of the merits of the case which undoubtedly raises issues
of national significance necessitating urgent resolution. Indeed,
owing to the peculiar nature of RA 9522, it is understandably
difficult to find other litigants possessing “a more direct and specific
interest” to bring the suit, thus satisfying one of the requirements for
granting citizenship standing.17
The Writs of Certiorari and Prohibition
Are Proper Remedies to Test
the Constitutionality of Statutes
In praying for the dismissal of the petition on preliminary
grounds, respondents seek a strict observance of the offices of the
writs of certiorari and prohibition, noting that the writs cannot issue
absent any showing of grave abuse of discretion in the exercise of
judicial, quasi-judicial or ministerial powers on the part of
respondents and resulting prejudice on the part of petitioners.18
Respondents’ submission holds true in ordinary civil
proceedings. When this Court exercises its constitutional power of
judicial review, however, we have, by tradition, viewed the writs of
certiorari and prohibition as proper remedial vehicles
_______________
16 Pascual v. Secretary of Public Works, 110 Phil. 331 (1960); Sanidad v.
Commission on Elections, 165 Phil. 303; 73 SCRA 333 (1976).
17 Francisco, Jr. v. House of Representatives, 460 Phil. 830, 899; 415 SCRA 44,
139 (2003) citing Kilosbayan, Inc. v. Guingona, Jr., G.R. No. 113375, 5 May 1994,
232 SCRA 110, 155-156 (1995) (Feliciano, J., concurring). The two other factors are:
“the character of funds or assets involved in the controversy and a clear disregard of
constitutional or statutory prohibition.” Id.
18 Rollo, pp. 144-147.
488

to test the constitutionality of statutes,19 and indeed, of acts of other

branches of government.20 Issues of constitutional import are
sometimes crafted out of statutes which, while having no bearing on
the personal interests of the petitioners, carry such relevance in the
life of this nation that the Court inevitably finds itself constrained to
take cognizance of the case and pass upon the issues raised, non-
compliance with the letter of procedural rules notwithstanding. The
statute sought to be reviewed here is one such law.
RA 9522 is Not Unconstitutional
RA 9522 is a Statutory Tool to Demar-

cate the Country’s Maritime Zones and
Continental Shelf Under UNCLOS III,
not to Delineate Philippine Territory
Petitioners submit that RA 9522 “dismembers a large portion of
the national territory”21 because it discards the pre-UNCLOS III
demarcation of Philippine territory under the Treaty of Paris and
related treaties, successively encoded in the definition of national
territory under the 1935, 1973 and 1987 Constitutions. Petitioners
theorize that this constitu-
_______________
19 See e.g. Aquino III v. Commission on Elections, G.R. No. 189793, 7 April
2010, 617 SCRA 623 (dismissing a petition for certiorari and prohibition assailing
the constitutionality of Republic Act No. 9716, not for the impropriety of remedy but
for lack of merit); Aldaba v. Commission on Elections, G.R. No. 188078, 25 January
2010, 611 SCRA 137 (issuing the writ of prohibition to declare unconstitutional
Republic Act No. 9591); Macalintal v. Commission on Elections, 453 Phil. 586; 405
SCRA 614 (2003) (issuing the writs of certiorari and prohibition declaring
unconstitutional portions of Republic Act No. 9189).
20 See e.g. Neri v. Senate Committee on Accountability of Public Officers and
Investigations, G.R. No. 180643, 25 March 2008, 549 SCRA 77 (granting a writ of
certiorari against the Philippine Senate and nullifying the Senate contempt order
issued against petitioner).
21 Rollo, p. 31.
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VOL. 655, AUGUST 16, 2011 489

tional definition trumps any treaty or statutory provision denying the

Philippines sovereign control over waters, beyond the territorial sea
recognized at the time of the Treaty of Paris, that Spain supposedly
ceded to the United States. Petitioners argue that from the Treaty of
Paris’ technical description, Philippine sovereignty over territorial
waters extends hundreds of nautical miles around the Philippine
archipelago, embracing the rectangular area delineated in the Treaty
of Paris.22
Petitioners’ theory fails to persuade us.
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.23
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.
On the other hand, baselines laws such as RA 9522 are enacted
by UNCLOS III States parties to mark-out specific basepoints along
their coasts from which baselines are drawn,
_______________
22 Respondents state in their Comment that petitioners’ theory “has not been
accepted or recognized by either the United States or Spain,” the parties to the Treaty
of Paris. Respondents add that “no State is known to have supported this proposition.”
Rollo, p. 179.
23 UNCLOS III belongs to that larger corpus of international law of the sea, which
petitioner Magallona himself defined as “a body of treaty rules and customary norms
governing the uses of the sea, the exploitation of its resources, and the exercise of
jurisdiction over maritime regimes. x x x x” (Merlin M. Magallona, Primer on the
Law of the Sea 1 [1997]) (Italicization supplied).
490

either straight or contoured, to serve as geographic starting points to

measure the breadth of the maritime zones and continental shelf.
Article 48 of UNCLOS III on archipelagic States like ours could not
be any clearer:
“Article 48. Measurement of the breadth of the territorial sea, the

contiguous zone, the exclusive economic zone and the continental shelf.—
The breadth of the territorial sea, the contiguous zone, the exclusive
economic zone and the continental shelf shall be measured from
archipelagic baselines drawn in accordance with article 47.” (Emphasis
supplied)
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).
Even under petitioners’ theory that the Philippine territory
embraces the islands and all the waters within the rectangular area
delimited in the Treaty of Paris, the baselines of the Philippines
would still have to be drawn in accordance with RA 9522 because
this is the only way to draw the baselines in conformity with
UNCLOS III. The baselines cannot be drawn from the boundaries or
other portions of the rectangular area delineated in the Treaty of
Paris, but from the “outermost islands and drying reefs of the
archipelago.”24
_______________
24 Following Article 47 (1) of UNCLOS III which provides:
An archipelagic State may draw straight archipelagic baselines joining the
outermost points of the outermost is-
491
VOL. 655, AUGUST 16, 2011 491

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,25 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.26
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 Sover-
eignty Over these Areas
Petitioners next submit that RA 9522’s use of UNCLOS III’s
regime of islands framework to draw the baselines, and to measure
the breadth of the applicable maritime zones of the KIG, “weakens
our territorial claim” over that area.27 Petitioners add that the KIG’s
(and Scarborough Shoal’s) exclusion from the Philippine
archipelagic baselines results in the loss of “about 15,000 square
nautical miles of territorial
_______________
lands and drying reefs of the archipelago provided that within such baselines
are included the main islands and an area in which the ratio of the area of the water to
the area of the land, including atolls, is between 1 to 1 and 9 to 1. (Emphasis
supplied)
25 Under the United Nations Charter, use of force is no longer a valid means of
acquiring territory.
26 The last paragraph of the preamble of UNCLOS III states that “matters not
regulated by this Convention continue to be governed by the rules and principles of
general international law.”
27 Rollo, p. 51.
492

waters,” prejudicing the livelihood of subsistence fishermen.28 A

comparison of the configuration of the baselines drawn under RA
3046 and RA 9522 and the extent of maritime space encompassed
by each law, coupled with a reading of the text of RA 9522 and its
congressional deliberations, vis-à-vis the Philippines’ obligations
under UNCLOS III, belie this view.
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.
Petitioners’ assertion of loss of “about 15,000 square nautical
miles of territorial waters” under RA 9522 is similarly unfounded
both in fact and law. On the contrary, RA 9522, by optimizing the
location of basepoints, increased the Philippines’ total maritime
space (covering its internal waters, territorial sea and exclusive
economic zone) by 145,216 square nautical miles, as shown in the
table below:29
Extent of maritime area using RA Extent of maritime area

3046, as amended, taking into account using RA 9522, taking into
the Treaty of Paris’ delimitation (in account UNCLOS III (in
square nautical miles) square nautical miles)
_______________
28 Id., at pp. 51-52, 64-66.
29 Based on figures respondents submitted in their Comment (id., at p. 182).
493
VOL. 655, AUGUST 16, 2011 493

Internal or 166,858 171,435

archipelagic
waters
Territorial 274,136 32,106
Sea
Exclusive 382,669
Economic
Zone
TOTAL 440,994 586,210
Thus, as the map below shows, the reach of the exclusive

economic zone drawn under RA 9522 even extends way beyond the
waters covered by the rectangular demarcation under the Treaty of
Paris. Of course, where there are overlapping exclusive economic
zones of opposite or adjacent States, there will have to be a
delineation of maritime boundaries in accordance with UNCLOS
III.30
_______________
30 Under Article 74.
494

Further, petitioners’ argument that the KIG now lies outside

Philippine territory because the baselines that RA 9522 draws do not
enclose the KIG is negated by RA 9522 itself. Section 2 of the law
commits to text the Philippines’ continued claim of sovereignty and
jurisdiction over the KIG and the Scarborough Shoal:
“SEC. 2. The baselines in the following areas over which the

Philippines likewise exercises sovereignty and jurisdiction shall be
determined as “Regime of Islands” under the Republic of the Philippines
consistent with Article 121 of the United Nations Convention on the Law of
the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree
No. 1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal.” (Emphasis
supplied)
Had Congress in RA 9522 enclosed the KIG and the

Scarborough Shoal as part of the Philippine archipelago, adverse
legal effects would have ensued. The Philippines would have
committed a breach of two provisions of UNCLOS III. First, Article
47 (3) of UNCLOS III requires that “[t]he drawing of such baselines
shall not depart to any appreciable extent from the general
configuration of the archipelago.” Second, Article 47 (2) of
UNCLOS III requires that “the length of the baselines shall not
exceed 100 nautical miles,” save for three per cent (3%) of the total
number of baselines which can reach up to 125 nautical miles.31
Although the Philippines has consistently claimed sovereignty
over the KIG32 and the Scarborough Shoal for several decades, these
outlying areas are located at an appreciable distance from the nearest
shoreline of the Philippine archi-
_______________
31 See note 7.
32 Presidential Decree No. 1596 classifies the KIG as a municipality of Palawan.
495
VOL. 655, AUGUST 16, 2011 495

pelago,33 such that any straight baseline loped around them from the
nearest basepoint will inevitably “depart to an appreciable extent
from the general configuration of the archipelago.”
The principal sponsor of RA 9522 in the Senate, Senator Miriam
Defensor-Santiago, took pains to emphasize the foregoing during the
Senate deliberations:
“What we call the Kalayaan Island Group or what the rest of the world
call[] the Spratlys and the Scarborough Shoal are outside our archipelagic
baseline because if we put them inside our baselines we might be accused of
violating the provision of international law which states: “The drawing of
such baseline shall not depart to any appreciable extent from the general
configuration of the archipelago.” So sa loob ng ating baseline, dapat
magkalapit ang mga islands. Dahil malayo ang Scarborough Shoal, hindi
natin masasabing malapit sila sa atin although we are still allowed by
international law to claim them as our own.
This is called contested islands outside our configuration. We see that our
archipelago is defined by the orange line which [we] call[] archipelagic
baseline. Ngayon, tingnan ninyo ang maliit na circle doon sa itaas, that is
Scarborough Shoal, itong malaking circle sa ibaba, that is Kalayaan Group
or the Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis pa
natin ang dating archipelagic baselines para lamang masama itong
dalawang circles, hindi na sila magkalapit at baka hindi na tatanggapin ng
United Nations because of the rule that it should follow the natural
configuration of the archipelago.”34 (Emphasis supplied)
Similarly, the length of one baseline that RA 3046 drew exceeded

UNCLOS III’s limits. The need to shorten this baseline, and in
addition, to optimize the location of basepoints using current maps,
became imperative as discussed by respondents:
_______________
33 KIG lies around 80 nautical miles west of Palawan while Scarborough Shoal is
around 123 nautical west of Zambales.
34 Journal, Senate 14th Congress 44th Session 1416 (27 January 2009).
496

“[T]he amendment of the baselines law was necessary to enable the Philippines
to draw the outer limits of its maritime zones including the extended continental
shelf in the manner provided by Article 47 of [UNCLOS III]. As defined by R.A.
3046, as amended by R.A. 5446, the baselines suffer from some technical
deficiencies, to wit:
1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash
to Tongquil Point) is 140.06 nautical miles x x x. This exceeds the maximum
length allowed under Article 47(2) of the [UNCLOS III], which states that
“The length of such baselines shall not exceed 100 nautical miles, except
that up to 3 per cent of the total number of baselines enclosing any
miles.”
2. The selection of basepoints is not optimal. At least 9 basepoints can be
skipped or deleted from the baselines system. This will enclose an additional
2,195 nautical miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968, and not
established by geodetic survey methods. Accordingly, some of the points,
particularly along the west coasts of Luzon down to Palawan were later
found to be located either inland or on water, not on low-water line and
drying reefs as prescribed by Article 47.”35
Hence, far from surrendering the Philippines’ claim over the KIG
and the Scarborough Shoal, Congress’ decision to classify the KIG
and the Scarborough Shoal as “‘Regime[s] of Islands’ under the
Republic of the Philippines consistent with Article 121”36 of
UNCLOS III manifests the Philippine State’s responsible
observance of its pacta sunt servanda obligation under UNCLOS
III. Under Article 121 of UNCLOS III, any “naturally formed area
of land, surrounded by water, which is above water at high tide,”
such as portions of the KIG, quali-
_______________
35 Rollo, p. 159.
36 Section 2, RA 9522.
497
VOL. 655, AUGUST 16, 2011 497

fies under the category of “regime of islands,” whose islands

generate their own applicable maritime zones.37
Statutory Claim Over Sabah under
RA 5446 Retained
Petitioners’ argument for the invalidity of RA 9522 for its failure
to textualize the Philippines’ claim over Sabah in North Borneo is
also untenable. Section 2 of RA 5446, which RA 9522 did not
repeal, keeps open the door for drawing the baselines of Sabah:
“Section 2. The definition of the baselines of the territorial sea of the

Philippine Archipelago as provided in this Act is without prejudice to the
delineation of the baselines of the territorial sea around the territory of
Sabah, situated in North Borneo, over which the Republic of the
Philippines has acquired dominion and sovereignty.” (Emphasis
supplied)
UNCLOS III and RA 9522 not Incom-

patible with the Constitution’s Delinea-
tion of Internal Waters
As their final argument against the validity of RA 9522,
petitioners contend that the law unconstitutionally “converts”
internal waters into archipelagic waters, hence subjecting these
waters to the right of innocent and sea lanes passage
_______________
37 Article 121 provides: “Regime of islands.—
1. An island is a naturally formed area of land, surrounded by water, which is
above water at high tide.
2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone,
the exclusive economic zone and the continental shelf of an island are determined in
accordance with the provisions of this Convention applicable to other land territory.
3. Rocks which cannot sustain human habitation or economic life of their own
shall have no exclusive economic zone or continental shelf.”
498

under UNCLOS III, including overflight. Petitioners extrapolate that

these passage rights indubitably expose Philippine internal waters to
nuclear and maritime pollution hazards, in violation of the
Constitution.38
Whether referred to as Philippine “internal waters” under Article
I of the Constitution39 or as “archipelagic waters” under UNCLOS
III (Article 49 [1]), the Philippines exercises sovereignty over the
body of water lying landward of the baselines, including the air
space over it and the submarine areas underneath. UNCLOS III
affirms this:
“Article 49. Legal status of archipelagic waters, of the air space over
archipelagic waters and of their bed and subsoil.—
1. 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.
2. This sovereignty extends to the air space over the archipelagic
waters, as well as to their bed and subsoil, and the resources contained
therein.
xxxx
4. 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
_______________
38 Rollo, pp. 56-57, 60-64.
39 Paragraph 2, Section 2, Article XII of the Constitution uses the term “archipelagic
waters” separately from “territorial sea.” Under UNCLOS III, an archipelagic State may have
internal waters—such as those enclosed by closing lines across bays and mouths of rivers. See
Article 50, UNCLOS III. Moreover, Article 8 (2) of UNCLOS III provides: “Where the
establishment of a straight baseline in accordance with the method set forth in article 7 has the
effect of enclosing as internal waters areas which had not previously been considered as such,
a right of innocent passage as provided in this Convention shall exist in those waters.”
(Emphasis supplied)
499
VOL. 655, AUGUST 16, 2011 499
and their air space, bed and subsoil, and the resources contained
therein.” (Emphasis supplied)
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.40
_______________
40 Mandated under Articles 52 and 53 of UNCLOS III:
Article 52. Right of innocent passage.—
1. Subject to article 53 and without prejudice to article 50, ships of all States
enjoy the right of innocent passage through archipelagic waters, in accordance
with Part II, section 3.
2. The archipelagic State may, without discrimination in form or in fact among
foreign ships, suspend temporarily in specified areas of its archipelagic waters the
innocent passage of foreign ships if such suspension is essential for the protection of
its security. Such suspension shall take effect only after having been duly published.
(Emphasis supplied)
Article 53. Right of archipelagic sea lanes passage.—
1. An archipelagic State may designate sea lanes and air routes thereabove,
suitable for the continuous and expeditious passage of foreign ships and aircraft
through or over its archipelagic waters and the adjacent territorial sea.
2. All ships and aircraft enjoy the right of archipelagic sea lanes passage in
such sea lanes and air routes.
3. Archipelagic sea lanes passage means the exercise in accordance with this
Convention of the rights of navigation and overflight in the normal mode solely for
the purpose of continuous, expeditious and unobstructed transit between one part of
the high seas or an exclusive economic zone and another part of the high seas or an
exclusive economic zone.
4. Such sea lanes and air routes shall traverse the archipelagic waters and the
adjacent territorial sea and shall include all normal passage routes used as routes for
international navigation or overflight
500

Indeed, bills drawing nautical highways for sea lanes passage are
now pending in Congress.41
_______________
through or over archipelagic waters and, within such routes, so far as
ships are concerned, all normal navigational channels, provided that
duplication of routes of similar convenience between the same entry and exit
points shall not be necessary.
5. Such sea lanes and air routes shall be defined by a series of continuous
axis lines from the entry points of passage routes to the exit points. Ships and
aircraft in archipelagic sea lanes passage shall not deviate more than 25
nautical miles to either side of such axis lines during passage, provided that
such ships and aircraft shall not navigate closer to the coasts than 10 per cent
of the distance between the nearest points on islands bordering the sea lane.
6. An archipelagic State which designates sea lanes under this article
may also prescribe traffic separation schemes for the safe passage of ships
through narrow channels in such sea lanes.
7. An archipelagic State may, when circumstances require, after giving
due publicity thereto, substitute other sea lanes or traffic separation schemes
for any sea lanes or traffic separation schemes previously designated or
prescribed by it.
8. Such sea lanes and traffic separation schemes shall conform to
generally accepted international regulations.
9. In designating or substituting sea lanes or prescribing or substituting
traffic separation schemes, an archipelagic State shall refer proposals to the
competent international organization with a view to their adoption. The
organization may adopt only such sea lanes and traffic separation schemes as
may be agreed with the archipelagic State, after which the archipelagic State
may designate, prescribe or substitute them.
10. The archipelagic State shall clearly indicate the axis of the sea lanes
and the traffic separation schemes designated or prescribed by it on charts to
which due publicity shall be given.
11. Ships in archipelagic sea lanes passage shall respect applicable sea
lanes and traffic separation schemes established in accordance with this
article.
12. If an archipelagic State does not designate sea lanes or air routes, the
right of archipelagic sea lanes passage may be exercised through the routes
normally used for international navigation. (Emphasis supplied)
41 Namely, House Bill No. 4153 and Senate Bill No. 2738, identically titled “AN
ACT TO ESTABLISH THE ARCHIPELAGIC SEA LANES IN THE PHILIPPINE
ARCHIPELAGIC WATERS, PRE-
501
VOL. 655, AUGUST 16, 2011 501

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.42 Significantly,
the right of innocent passage is
_______________
SCRIBING THE RIGHTS AND OBLIGATIONS OF FOREIGN SHIPS AND
AIRCRAFTS EXERCISING THE RIGHT OF ARCHIPELAGIC SEA LANES
PASSAGE THROUGH THE ESTABLISHED ARCHIPELAGIC SEA LANES AND
PROVIDING FOR THE ASSOCIATED PROTECTIVE MEASURES THEREIN.”
42 The relevant provision of UNCLOS III provides:
Article 17. Right of innocent passage.—
Subject to this Convention, ships of all States, whether coastal or land-
locked, enjoy the right of innocent passage through the territorial sea.
(Emphasis supplied)
Article 19. Meaning of innocent passage.—
1. Passage is innocent so long as it is not prejudicial to the peace, good
order or security of the coastal State. Such passage shall take place in
conformity with this Convention and with other rules of international law.
2. Passage of a foreign ship shall be considered to be prejudicial to the
peace, good order or security of the coastal State if in the territorial sea it
engages in any of the following activities:
(a) any threat or use of force against the sovereignty, territorial integrity
or political independence of the coastal State, or in any other manner in
violation of the principles of international law embodied in the Charter of the
United Nations;
(b) any exercise or practice with weapons of any kind;
(c) any act aimed at collecting information to the prejudice of the
defence or security of the coastal State;
(d) any act of propaganda aimed at affecting the defence or security of
the coastal State;
(e) the launching, landing or taking on board of any aircraft;
(f) the launching, landing or taking on board of any military device;
(g) the loading or unloading of any commodity, currency or person
contrary to the customs, fiscal, immigration or sanitary laws and regulations
of the coastal State;
(h) any act of willful and serious pollution contrary to this Convention;
502

a customary international law,43 thus automatically incorpo-
_______________
(i) any fishing activities;
(j) the carrying out of research or survey activities;
(k) any act aimed at interfering with any systems of communication or any other
facilities or installations of the coastal State;
(l) any other activity not having a direct bearing on passage
Article 21. Laws and regulations of the coastal State relating to innocent
passage.—
1. The coastal State may adopt laws and regulations, in conformity with the
provisions of this Convention and other rules of international law, relating to innocent
passage through the territorial sea, in respect of all or any of the following:
(a) the safety of navigation and the regulation of maritime traffic;
(b) the protection of navigational aids and facilities and other facilities or
installations;
(c) the protection of cables and pipelines;
(d) the conservation of the living resources of the sea;
(e) the prevention of infringement of the fisheries laws and regulations of the
coastal State;
(f) the preservation of the environment of the coastal State and the prevention,
reduction and control of pollution thereof;
(g) marine scientific research and hydrographic surveys;
(h) the prevention of infringement of the customs, fiscal, immigration or sanitary
laws and regulations of the coastal State.
2. Such laws and regulations shall not apply to the design, construction,
manning or equipment of foreign ships unless they are giving effect to generally
accepted international rules or standards.
3. The coastal State shall give due publicity to all such laws and regulations.
4. Foreign ships exercising the right of innocent passage through the territorial
sea shall comply with all such laws and regulations and all generally accepted
international regulations relating to the prevention of collisions at sea.
43 The right of innocent passage through the territorial sea applies only to ships
and not to aircrafts (Article 17, UNCLOS III). The right of innocent passage of
aircrafts through the sovereign territory of a State arises only under an international
agreement. In contrast,
503
VOL. 655, AUGUST 16, 2011 503

rated in the corpus of Philippine law.44 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 passage45
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.46 Separate islands generate their own
maritime zones, placing the waters between islands separated by
more than 24 nautical miles be-
_______________
the right of innocent passage through archipelagic waters applies to both ships and
aircrafts (Article 53 (12), UNCLOS III).
44 Following Section 2, Article II of the Constitution: “Section 2. The Philippines
renounces war as an instrument of national policy, adopts the generally accepted
principles of international law as part of the law of the land and adheres to the
policy of peace, equality, justice, freedom, cooperation, and amity with all nations.”
(Emphasis supplied)
45 “Archipelagic sea lanes passage is essentially the same as transit passage
through straits” to which the territorial sea of continental coastal State is subject. R.R.
Churabill and A.V. Lowe, The Law of the Sea 127 (1999).
46 Falling under Article 121 of UNCLOS III (see note 37).
504

yond the States’ territorial sovereignty, subjecting these waters to the

rights of other States under UNCLOS III.47
Petitioners’ invocation of non-executory constitutional provisions
in Article II (Declaration of Principles and State Pol-
_______________
47 Within the exclusive economic zone, other States enjoy the following rights
under UNCLOS III:
Article 58. Rights and duties of other States in the exclusive economic zone.—
1. In the exclusive economic zone, all States, whether coastal or land-locked,
enjoy, subject to the relevant provisions of this Convention, the freedoms referred to
in Article 87 of navigation and overflight and of the laying of submarine cables and
pipelines, and other internationally lawful uses of the sea related to these freedoms,
such as those associated with the operation of ships, aircraft and submarine cables and
pipelines, and compatible with the other provisions of this Convention.
2. Articles 88 to 115 and other pertinent rules of international law apply to the
exclusive economic zone in so far as they are not incompatible with this Part.
xxxx
Beyond the exclusive economic zone, other States enjoy the freedom of the high
seas, defined under UNCLOS III as follows:
Article 87. Freedom of the high seas.—
1. The high seas are open to all States, whether coastal or land-locked. Freedom
of the high seas is exercised under the conditions laid down by this Convention and
by other rules of international law. It comprises, inter alia, both for coastal and land-
locked States:
(a) freedom of navigation;
(b) freedom of overflight;
(c) freedom to lay submarine cables and pipelines, subject to Part VI;
(d) freedom to construct artificial islands and other installations permitted under
international law, subject to Part VI;
(e) freedom of fishing, subject to the conditions laid down in section 2;
(f) freedom of scientific research, subject to Parts VI and XIII.
2. These freedoms shall be exercised by all States with due regard for the
interests of other States in their exercise of the freedom of the high seas, and also with
due regard for the rights under this Convention with respect to activities in the Area.
505
VOL. 655, AUGUST 16, 2011 505

icies)48 must also fail. Our present state of jurisprudence considers

the provisions in Article II as mere legislative guides, which, absent
enabling legislation, “do not embody judicially enforceable
constitutional rights x x x.”49 Article II provisions serve as guides in
formulating and interpreting implementing legislation, as well as in
interpreting executory provisions of the Constitution. Although
Oposa v. Factoran50 treated the right to a healthful and balanced
ecology under Section 16 of Article II as an exception, the present
petition lacks factual basis to substantiate the claimed constitutional
violation. The other provisions petitioners cite, relating to the
protection of marine wealth (Article XII, Section 2, paragraph 251)
and subsistence fishermen (Article XIII, Section 752), are not
violated by RA 9522.
In fact, the demarcation of the baselines enables the Philippines
to delimit its exclusive economic zone, reserving solely to the
Philippines the exploitation of all living and non-living resources
within such zone. Such a maritime delineation binds the
international community since the delineation is in
_______________
48 See note 13.
49 Kilosbayan, Inc. v. Morato, 316 Phil. 652, 698; 246 SCRA 540, 564 (1995);
Tañada v. Angara, 338 Phil. 546, 580-581; 272 SCRA 18, 54 (1997).
50 G.R. No. 101083, 30 July 1993, 224 SCRA 792.
51 “The State shall protect the nation’s marine wealth in its archipelagic waters,
territorial sea, and exclusive economic zone, and reserve its use and enjoyment
exclusively to Filipino citizens.”
52 “The State shall protect the rights of subsistence fishermen, especially of local
communities, to the preferential use of the communal marine and fishing resources,
both inland and offshore. It shall provide support to such fishermen through
appropriate technology and research, adequate financial, production, and marketing
assistance, and other services. The State shall also protect, develop, and conserve
such resources. The protection shall extend to offshore fishing grounds of subsistence
fishermen against foreign intrusion. Fishworkers shall receive a just share from their
labor in the utilization of marine and fishing resources.”
506

strict observance of UNCLOS III. If the maritime delineation is

contrary to UNCLOS III, the international community will of course
reject it and will refuse to be bound by it.
UNCLOS III favors States with a long coastline like the
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
miles.53 UNCLOS III, however, preserves the traditional freedom of
navigation of other States that attached to this zone beyond the
territorial sea before UNCLOS III.
RA 9522 and the Philippines’ Maritime Zones
Petitioners hold the view that, based on the permissive text of

UNCLOS III, Congress was not bound to pass RA 9522.54 We have
looked at the relevant provision of UNCLOS III55 and we find
petitioners’ reading plausible. Nevertheless, the prerogative of
choosing this option belongs to Congress, not to this Court.
Moreover, the luxury of choosing this option comes at a very steep
price. Absent an UNCLOS III compliant baselines law, an
archipelagic State like the Philippines will find itself devoid of
internationally acceptable baselines from where the breadth of its
maritime zones and continental shelf is measured. This is recipe for
a two-fronted disaster: first, it sends an open invitation to the
seafaring powers to freely
_______________
53 This can extend up to 350 nautical miles if the coastal State proves its right to
claim an extended continental shelf (see UNCLOS III, Article 76, paragraphs 4(a), 5
and 6, in relation to Article 77).
54 Rollo, pp. 67-69.
55 Article 47 (1) provides: “An archipelagic State may draw straight archipelagic
baselines joining the outermost points of the outermost islands and drying reefs of the
archipelago provided that within such baselines are included the main islands and an
area in which the ratio of the area of the water to the area of the land, including atolls,
is between 1 to 1 and 9 to 1.” (Emphasis supplied)
507
VOL. 655, AUGUST 16, 2011 507

enter and exploit the resources in the waters and submarine areas
around our archipelago; and second, it weakens the country’s case in
any international dispute over Philippine maritime space. These are
consequences Congress wisely avoided.
The enactment of UNCLOS III compliant baselines law for the
Philippine archipelago and adjacent areas, as embodied in RA 9522,
allows an internationally-recognized delimitation of the breadth of
the Philippines’ maritime zones and continental shelf. RA 9522 is
therefore a most vital step on the part of the Philippines in
safeguarding its maritime zones, consistent with the Constitution
and our national interest.
WHEREFORE, we DISMISS the petition.
SO ORDERED.
Corona (C.J.), Leonardo-De Castro, Brion, Peralta,

Bersamin, Del Castillo, Villarama, Jr., Mendoza and Sereno, JJ.,
concur.
Velasco, Jr., J., Pls. See Concurring Opinion.
Abad, J., I certify that Mr. Justice Abad left his concurring vote.
Perez, J., On Leave.
CONCURRING OPINION
VELASCO, JR., J.:

I concur with the ponencia and add the following complementary
arguments and observations:
A statute is a product of hard work and earnest studies of
Congress to ensure that no constitutional provision, prescription or
concept is infringed. Withal, before a law, in an appropriate
proceeding, is nullified, an unequivocal breach of, or a clear conflict
with, the Constitution must be demonstrated in
508

such a way as to leave no doubt in the mind of the Court.1 In the

same token, if a law runs directly afoul of the Constitution, the
Court’s duty on the matter should be clear and simple: Pursuant to
its judicial power and as final arbiter of all legal questions,2 it should
strike such law down, however laudable its purpose/s might be and
regardless of the deleterious effect such action may carry in its
wake.
Challenged in these proceedings is the constitutionality 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 Philippines and for Other Purposes.”
For perspective, RA 3046, “An Act to Define the Baselines of the
Territorial Sea of the Philippines, was enacted in 1961 to comply
with the United Nations Convention on the Law of the Sea
(UNCLOS) I. Eight years later, RA 5446 was enacted to amend
typographical errors relating to coordinates in RA 3046. The latter
law also added a provision asserting Philippine sovereignty over
Sabah.
As its title suggests, RA 9522 delineates archipelagic baselines of
the country, amending in the process the old baselines law, RA 3046.
Everybody is agreed that RA 9522 was enacted in response to the
country’s commitment to conform to some 1982 Law of the Sea
Convention (LOSC) or UNCLOS III provisions to define new
archipelagic baselines through legislation, the Philippines having
signed3 and eventually ratified4
_______________
1 League of Cities of the Phil. v. Commission on Elections, G.R. No. 176951,
December 21, 2009, 608 SCRA 636.
2 Under Art. VIII, Sec. 5 of the Constitution, the Supreme Court is empowered to
review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the
Rules of Court may provide, final judgments and orders of lower courts in: all cases
in which the Constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or
regulation is in question. (Emphasis supplied.)
3 December 10, 1982.
509
VOL. 655, AUGUST 16, 2011 509

this multilateral treaty. The Court can take judicial notice that RA
9522 was registered and deposited with the UN on April 4, 2009.
As indicated in its Preamble,5 1982 LOSC aims, among other
things, to establish, with due regard for the sovereignty of all States,
“a legal order for the seas and oceans which will facilitate
international communication, and will promote the peaceful uses of
the seas and oceans.” One of the measures to attain the order
adverted to is to have a rule on baselines. Of particular relevance to
the Philippines, as an archipelagic state, is Article 47 of UNCLOS
III which deals with baselines:
1. An archipelagic State may draw straight archipelagic baselines

joining the outermost points of the outermost islands and drying reefs of
the archipelago provided that within such baselines are included the main
islands and an area in which the ratio of the area of the water to the area of
the land, including atolls, is between 1 to 1 and 9 to 1.
2. The length of such baseline shall not exceed 100 nautical miles, except
that up to 3 per cent of the total number of baselines enclosing any
miles.
3. The drawing of such baselines shall not depart to any appreciable
extent from the general configuration of the archipelago.
xxxx
9. The archipelagic State shall give due publicity to 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 Nations.6 (Emphasis added.)
_______________
4 May 8, 1984.
5 Available on <http://www.un.org/Depts/los/convention_
agreements/texts/unclos/closindx.htm> (visited July 28, 2011).
6 UNCLOS, Art. 47, December 10, 1982.
510

To obviate, however, the possibility that certain UNCLOS III
baseline provisions would, in their implementation, undermine its
sovereign and/or jurisdictional interests over what it considers its
territory,7 the Philippines, when it signed UNCLOS III on December
10, 1982, made the following “Declaration” to said treaty:
“The Government of the Republic of the Philippines [GRP] hereby

manifests that in signing the 1982 United Nations Convention on the Law of
the Sea, it does so with the understandings embodied in this declaration,
made under the provisions of Article 310 of the Convention, to wit:
The signing of the Convention by the [GRP] shall not in any manner
impair or prejudice the sovereign rights of the [RP] under and arising
from the Constitution of the Philippines;
Such signing shall not in any manner affect the sovereign rights of the [RP]
as successor of the United States of America [USA], under and arising out
of the Treaty of Paris between Spain and the United States of America of
December 10, 1898, and the Treaty of Washington between the [USA] and
Great Britain of January 2, 1930;
xxxx
Such signing shall not in any manner impair or prejudice the sovereignty of
the [RP] over any territory over which it exercises sovereign authority, such
as the Kalayaan Islands, and the waters appurtenant thereto;
The Convention shall not be construed as amending in any manner any
pertinent laws and Presidential Decrees or Proclamations of the Republic of
the Philippines. The [GRP] maintains and reserves the right and authority to
make any amendments to such laws, decrees or proclamations pursuant to
the provisions of the Philippine Constitution;
The provisions of the Convention on archipelagic passage through sea lanes
do not nullify or impair the sovereignty of the Philippines as an archipelagic
state over the sea lanes and do not deprive it of
_______________
7 J. Bernas, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES A COMMENTARY
57 (2003).
511
VOL. 655, AUGUST 16, 2011 511

authority to enact legislation to protect its sovereignty independence and

security;
The concept of archipelagic waters is similar to the concept of internal
waters under the Constitution of the Philippines, and removes straits
connecting these waters with the economic zone or high sea from the rights
of foreign vessels to transit passage for international navigation.”8
(Emphasis added.)
Petitioners challenge the constitutionality of RA 9522 on the

principal ground that the law violates Section 1, Article I of the 1987
Constitution on national territory which states:
“Section 1. The national territory comprises the Philippine

archipelago, with all the islands and waters embraced therein, and all other
territories over which the Philippines has sovereignty or jurisdiction,
consisting of its terrestrial, fluvial and aerial domains, including its
territorial sea, the seabed, the subsoil, the insular shelves, and other
submarine areas. The waters around, between, and connecting the
islands of the archipelago, regardless of their breadth and dimensions,
form part of the internal waters of the Philippines.” (Emphasis supplied.)
According to Fr. Joaquin Bernas, S.J., himself a member of the

1986 Constitutional Commission which drafted the 1987
Constitution, the aforequoted Section 1 on national territory was “in
substance a copy of its 1973 counterpart.”9 Art. I of the 1973
Constitution reads:
“Section 1. The national territory comprises the Philippine

archipelago, with all the islands and waters embraced therein, and all other
territories belonging to the Philippines by historic right or legal title,
including the territorial sea, the air space, the subsoil, the insular shelves,
and other submarine areas over which
_______________
8 See J. Batongbacal, The Metes and Bounds of the Philippine National Territory, An
International Law and Policy Perspective, Supreme Court of the Philippines, Philippine
Judicial Academy Third Distinguished Lecture, Far Eastern University, June 27, 2008.
9 J. Bernas, supra note 7, at p. 10.
512

the Philippines has sovereignty or jurisdiction. The waters around,

between, and connecting the islands of the archipelago, regardless of
their breadth and dimensions, form part of the internal waters of the
Philippines.” (Emphasis added.)
As may be noted both constitutions speak of the “Philippine

archipelago,” and, via the last sentence of their respective
provisions, assert the country’s adherence to the “archipelagic
principle.” Both constitutions divide the national territory into two
main groups: (1) the Philippine archipelago and (2) other territories
belonging to the Philippines. So what or where is Philippine
archipelago contemplated in the 1973 and 1987 Constitutions then?
Fr. Bernas answers the poser in the following wise:
“Article I of the 1987 Constitution cannot be fully understood without

reference to Article I of the 1973 Constitution. x x x
xxxx
x x x To understand [the meaning of national territory as comprising the
Philippine archipelago], one must look into the evolution of [Art. I of the
1973 Constitution] from its first draft to its final form.
Section 1 of the first draft submitted by the Committee on National
Territory almost literally reproduced Article I of the 1935 Constitution x x x.
Unlike the 1935 version, however, the draft designated the Philippines not
simply as the Philippines but as “the Philippine archipelago.10 In response to
the criticism that the definition was colonial in tone x x x, the second draft
further designated the Philippine archipelago, as the historic home of the
Filipino people from its beginning.11
After debates x x x, the Committee reported out a final draft, which
became the initially approved version: “The national territory consists of the
Philippine archipelago which is the ancestral home of the Filipino people
and which is composed of all the islands and waters embraced therein…”
_______________
10 Citing Report No. 01 of the Committee on National Territory.
11 Citing Report No. 02 of the Committee on National Territory.
513
VOL. 655, AUGUST 16, 2011 513


What was the intent behind the designation of the Philippines as an
“archipelago”? x x x Asked by Delegate Roselller Lim (Zamboanga) where
this archipelago was, Committee Chairman Quintero answered that it was
the area delineated in the Treaty of Paris. He said that objections to the
colonial implication of mentioning the Treaty of Paris was responsible for
the omission of the express mention of the Treaty of Paris.
Report No. 01 of the Committee on National Territory had in fact been
explicit in its delineation of the expanse of this archipelago. It said:
Now if we plot on a map the boundaries of this archipelago as set
forth in the Treaty of Paris, a huge or giant rectangle will emerge,
measuring about 600 miles in width and 1,200 miles in length. Inside
this giant rectangle are the 7,100 islands comprising the Philippine
Islands. From the east coast of Luzon to the eastern boundary of this
huge rectangle in the Pacific Ocean, there is a distance of over 300
miles. From the west coast of Luzon to the western boundary of this
giant rectangle in the China sea, there is a distance of over 150 miles.
When the [US] Government enacted the Jones Law, the Hare-
Hawes Cutting Law and the Tydings McDuffie Law, it in reality
announced to the whole world that it was turning over to the
Government of the Philippine Islands an archipelago (that is a big
body of water studded with islands), the boundaries of which
archipelago are set forth in Article III of the Treaty of Paris. It also
announced to the whole world that the waters inside the giant
rectangle belong to the Philippines—that they are not part of the high
seas.
When Spain signed the Treaty of Paris, in effect she announced to
the whole world that she was ceding to the [US] the Philippine
archipelago x x x, that this archipelago was bounded by lines
specified in the treaty, and that the archipelago consisted of the huge
body of water inside the boundaries and the islands inside said
boundaries.
The delineation of the extent of the Philippine archipelago must be
understood in the context of the modifications made both by the Treaty
of Washington of November 7, 1900, and of the Convention of January 12,
1930, in order to include the Islands of Sibutu and of Cagayan de Sulu and
the Turtle and
514

Mangsee Islands. However, x x x the definition of the archipelago did not

include the Batanes group[, being] outside the boundaries of the Philippine
archipelago as set forth in the Treaty of Paris. In literal terms, therefore, the
Batanes islands would come not under the Philippine archipelago but under
the phrase “all other territories belong to the Philippines.”12 x x x (Emphasis
added.)
From the foregoing discussions on the deliberations of the

provisions on national territory, the following conclusion is
abundantly evident: the “Philippine archipelago” of the 1987
Constitution is the same “Philippine archipelago” referred to in Art.
I of the 1973 Constitution which in turn corresponds to the territory
defined and described in Art. 1 of the 1935 Constitution,13 which
pertinently reads:
“Section 1. The Philippines comprises all the territory ceded to the

[US] by the Treaty of Paris concluded between the [US] and Spain on the
tenth day of December, [1898], the limits of which are set forth in Article III
of said treaty, together with all the islands in the treaty concluded at
Washington, between the [US] and Spain on November [7, 1900] and the
treaty concluded between the [US] and Great Britain x x x.”
While the Treaty of Paris is not mentioned in both the 1973 and
1987 Constitutions, its mention, so the nationalistic arguments went,
being “a repulsive reminder of the indignity of our colonial past,”14
it is at once clear that the Treaty of Paris had been utilized as key
reference point in the definition of the national territory.
On the other hand, the phrase “all other territories over which
the Philippines has sovereignty or jurisdiction,” found in the 1987
Constitution, which replaced the deleted phrase “all territories
belonging to the Philippines by historic right or
_______________
12 J. Bernas, supra note 7, at pp. 11-14.
13 Id., at p. 14.
14 Id., at p. 9; citing Speech, Session February 15, 1972, of Delegates Amanio
Sorongon, et al.
515
VOL. 655, AUGUST 16, 2011 515

legal title”15 found in the 1973 Constitution, covers areas linked to

the Philippines with varying degrees of certainty.16 Under this
category would fall: (a) Batanes, which then 1971 Convention
Delegate Eduardo Quintero, Chairperson of the Committee on
National Territory, described as belonging to the Philippines in all its
history;17 (b) Sabah, over which a formal claim had been filed, the
so-called Freedomland (a group of islands known as Spratleys); and
(c) any other territory, over which the Philippines had filed a claim
or might acquire in the future through recognized modes of
acquiring territory.18 As an author puts it, the deletion of the words
“by historic right or legal title” is not to be interpreted as precluding
future claims to areas over which the Philippines does not actually
exercise sovereignty.19
Upon the foregoing perspective and going into specifics,
petitioners would have RA 9522 stricken down as unconstitutional
for the reasons that it deprives the Philippines of what has long been
established as part and parcel of its national territory under the
Treaty of Paris, as supplemented by the aforementioned 1900 Treaty
of Washington or, to the same effect, revises the definition on or
dismembers 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 another point,
petitioners parlay the theory that the law in question virtually
weakens the country’s territorial claim over the Kalayaan Island
Group (KIG) and Sabah, both of which come under the cate-
_______________
15 The history of this deleted phrase goes back to the last clause of Art. I of the
1935 Constitution which included “all territory over which the present Government of
the Philippine Islands exercises jurisdiction. See J. Bernas, supra note 7, at p. 14.
17 Id.; citing deliberations of the February 17, 1972 Session.
18 Id.
19 De Leon, PHILIPPINE CONSTITUTION 62 (2011).
20 Petition, pp. 4-5.
516

gory of “other territories” over the Philippines has sovereignty or

jurisdiction. Petitioners would also assail the law on grounds related
to territorial sea lanes and internal waters transit passage by foreign
vessels.
It is remarkable that petitioners could seriously argue that RA
9522 revises the Philippine territory as defined in the Constitution,
or worse, constitutes an abdication of territory.
It cannot be over-emphasized enough that RA 9522 is a baseline
law enacted to implement the 1982 LOSC, which in turn seeks to
regulate and establish an orderly sea use rights over maritime zones.
Or as the ponencia aptly states, RA 9522 aims to mark-out specific
base points along the Philippine coast from which baselines are
drawn to serve as starting points to measure the breadth of the
territorial sea and maritime zones.21 The baselines are set to define
the sea limits of a state, be it coastal or archipelagic, under the
UNCLOS III regime. By setting the baselines to conform to the
prescriptions of UNCLOS III, RA 9522 did not surrender any
territory, as petitioners would insist at every turn, for UNCLOS
III is concerned with setting order in the exercise of sea-use
rights, not the acquisition or cession of territory. And let it be
noted that under UNCLOS III, it is recognized that countries
can have territories outside their baselines. Far from having a
dismembering effect, then, RA 9522 has in a limited but real
sense increased the country’s maritime boundaries. How this
situation comes about was extensively explained by then Minister of
State and head of the Philippine delegation to UNCLOS III Arturo
Tolentino in his spon-
_______________
21 Art. 48 of UNCLOS III provides that the breadth of the territorial sea, the
contiguous zone, the exclusive economic zone and the continental shelf shall be
measured from the archipelagic baseline drawn in accordance with Art. 47.
517
VOL. 655, AUGUST 16, 2011 517

22
sorship speech on the concurrence of the Batasang Pambansa with
the LOSC:
“x x x x
Then, we should consider, Mr. Speaker, that under the archipelagic
principle, the whole area inside the archipelagic base lines become a unified
whole and the waters between the islands which formerly were regarded by
international law as open or international seas now become waters under the
complete sovereignty of the Filipino people. In this light there would be an
additional area of 141,800 square nautical miles inside the base lines that
will be recognized by international law as Philippine waters, equivalent to
45,351,050 hectares. These gains in the waters of the sea, 45,211,225
hectares outside the base lines and 141,531,000 hectares inside the base
lines, total 93,742,275 hectares as a total gain in the waters under Philippine
jurisdiction.
From a pragmatic standpoint, therefore, the advantage to our country and
people not only in terms of the legal unification of land and waters of the
archipelago in the light of international law, but also in terms of the vast
resources that will come under the dominion and jurisdiction of the
Republic of the Philippines, your Committee on Foreign Affairs does not
hesitate to ask this august Body to concur in the Convention by approving
the resolution before us today.
May I say it was the unanimous view of delegations at the Conference on
the Law of the Sea that archipelagos are among the biggest gainers or
beneficiaries under the Convention on the Law of the Sea.”
Lest it be overlooked, the constitutional provision on national

territory, as couched, is broad enough to encompass RA 9522’s
definition of the archipelagic baselines. To reiterate, the laying down
of baselines is not a mode of acquiring or asserting ownership a
territory over which a state exercises sovereignty. They are drawn
for the purpose of defining or
_______________
22 R.P. Lotilla, THE PHILIPPINE NATIONAL TERRITORY: A COLLECTION OF RELATED
DOCUMENTS 513-517 (1995); citing Batasang Pambansa, Acts and Resolution, 6th
Regular Session.
518

establishing the maritime areas over which a state can exercise

sovereign rights. Baselines are used for fixing starting point from
which the territorial belt is measured seawards or from which the
adjacent maritime waters are measured. Thus, the territorial sea, a
marginal belt of maritime waters, is measured from the baselines
extending twelve (12) nautical miles outward.23 Similarly, Art. 57 of
the 1982 LOSC provides that the Exclusive Economic Zone (EEZ)
“shall not extend beyond 200 nautical miles from the baselines from
which the breadth of the territorial sea is measured.”24 Most
important to note is that the baselines indicated under RA 9522 are
derived from Art. 47 of the 1982 LOSC which was earlier quoted.
Since the 1987 Constitution’s definition of national territory does
not delimit where the Philippine’s baselines are located, it is up to
the political branches of the government to supply the deficiency.
Through Congress, the Philippines has taken an official position
regarding its baselines to the international community through RA
3046,25 as amended by RA 544626 and RA 9522. When the
Philippines deposited a copy of RA 9522 with the UN Secretary
General, we effectively complied in good faith with our obligation
under the 1982 LOSC. A declaration by the Court of the
constitutionality of the law will complete the bona fides of the
Philippines vis-a-vis the law of the sea treaty.
It may be that baseline provisions of UNCLOS III, if strictly
implemented, may have an imposing impact on the signatory states’
jurisdiction and even their sovereignty. But this actuality, without
more, can hardly provide a justifying dimension to nullify the
complying RA 9522. As held by the
_______________
24 UNCLOS III, Art. 57.
25 June 17, 1961.
26 September 18, 1968.
519
VOL. 655, AUGUST 16, 2011 519

Court in Bayan Muna v. Romulo,27 treaties and international

agreements have a limiting effect on the otherwise encompassing
and absolute nature of sovereignty. By their voluntary acts, states
may decide to surrender or waive some aspects of their sovereignty.
The usual underlying consideration in this partial surrender may be
the greater benefits derived from a pact or reciprocal undertaking.
On the premise that the Philippines has adopted the generally
accepted principles of international law as part of the law of the
land, a portion of sovereignty may be waived without violating the
Constitution.
As a signatory of the 1982 LOSC, it behooves the Philippines to
honor its obligations thereunder. Pacta sunt servanda, a basic
international law postulate that “every treaty in force is binding upon
the parties to it and must be performed by them in good faith.”28 The
exacting imperative of this principle is such that a state may not
invoke provisions in its constitution or its laws as an excuse for
failure to perform this duty.”29
The allegation that Sabah has been surrendered by virtue of RA
9522, which supposedly repealed the hereunder provision of RA
5446, is likewise unfounded.
“Section 2. The definition of the baselines of the territorial sea of the

Philippine Archipelago as provided in this Act is without prejudice to the
delineation of the baselines of the territorial sea around the territory of
Sabah, situated in North Borneo, over which the Republic of the Philippines
has acquired dominion and sovereignty.”
There is nothing in RA 9522 indicating a clear intention to

supersede Sec. 2 of RA 5446. Petitioners obviously have read
_______________
27 G.R. No. 159618, February 1, 2011, 641 SCRA 244; citing Tañada v. Angara,
G.R. No. 118295, May 2, 1997, 272 SCRA 18.
28 Art. 26, Vienna Convention on the Law of Treaties, 1969.
29 Art. 13, Declaration of Rights and Duties of States Adopted by the
International Law Commission, 1949.
520

too much into RA 9522’s amendment on the baselines found in an

older law. Aside from setting the country’s baselines, RA 9522 is, in
its Sec. 3, quite explicit in its reiteration of the Philippines’ exercise
of sovereignty, thus:
“Section 3. This Act affirms that the Republic of the Philippines has
dominion, sovereignty and jurisdiction over all portions of the national
territory as defined in the Constitution and by provisions of applicable laws
including, without limitation, Republic Act No. 7160, otherwise known as
the Local Government Code of 1991, as amended.”
To emphasize, baselines are used to measure the breadth of the

territorial sea, the contiguous zone, the exclusive economic zone and
the continental shelf. Having KIG and the Scarborough Shoal
outside Philippine baselines will not diminish our sovereignty over
these areas. Art. 46 of UNCLOS III in fact recognizes that an
archipelagic state, such as the Philippines, is a state “constituted
wholly by one or more archipelagos and may include other
islands.” (emphasis supplied) The “other islands” referred to in Art.
46 are doubtless islands not forming part of the archipelago but are
nevertheless part of the state’s territory.
The Philippines’ sovereignty over KIG and Scarborough Shoal
are, thus, in no way diminished. Consider: Other countries such as
Malaysia and the United States have territories that are located
outside its baselines, yet there is no territorial question arising from
this arrangement.30
It may well be apropos to point out that the Senate version of the
baseline bill that would become RA 9522 contained the following
explanatory note: The law “reiterates our sovereignty over the
Kalayaan Group of Islands declared as part of the Philippine
territory under Presidential Decree No. 1596. As part of the
Philippine territory, they shall be considered as
_______________
30 See J. Batongbacal, supra note 8.
521
VOL. 655, AUGUST 16, 2011 521

a ‘regime of islands’ under Article 121 of the Convention.”31 Thus,

instead of being in the nature of a “treasonous surrender” that
petitioners have described it to be, RA 9522 even harmonizes our
baseline laws with our international agreements, without limiting
our territory to those confined within the country’s baselines.
Contrary to petitioners’ contention, the classification of KIG and
the Scarborough Shoal as falling under the Philippine’s regime of
islands is not constitutionally objectionable. Such a classification
serves as compliance with LOSC and the Philippines’ assertion of
sovereignty over KIG and Scarborough Shoal. In setting the baseline
in KIG and Scarborough Shoal, RA 9522 states that these are areas
“over which the Philippines likewise exercises sovereignty and
jurisdiction.” It is, thus, not correct for petitioners to claim that the
Philippines has lost 15,000 square nautical miles of territorial waters
upon making this classification. Having 15,000 square nautical miles
of Philippine waters outside of our baselines, to reiterate, does not
translate to a surrender of these waters. The Philippines maintains its
assertion of ownership over territories outside of its baselines. Even
China views RA 9522 as an assertion of ownership, as seen in its
Protest32 filed with the UN Secretary-General upon the deposit of
RA 9522.
_______________
31 Id.
32 The Protest reads in part: “The above-mentioned Philippine Act illegally claims
Huangyan Island (referred as “Bajo de Masinloc” in the Act) of China as “areas over
which the Philippines likewise exercises sovereignty and jurisdiction.” The Chinese
Government hereby reiterates that Huangyan Island and Nansha Islands have been
part of the territory of China since ancient time. The People’s Republic of China has
indisputable sovereignty over Huangyan Island and Nansha Islands and their
surrounding areas. Any claim to territorial sovereignty over Huangyan Island and
Nansha Islands by any other State is, therefore, null and void.” Available on
<http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/DEPOSIT/communicationsredeposit/mzn69_2009_chn.pdf>
(visited August 9, 2011).
522


We take judicial notice of the effective occupation of KIG by the
Philippines. Petitioners even point out that national and local
elections are regularly held there. The classification of KIG as under
a “regime of islands” does not in any manner affect the Philippines’
consistent position with regard to sovereignty over KIG. It does not
affect the Philippines’ other acts of ownership such as occupation or
amend Presidential Decree No. 1596, which declared KIG as a
municipality of Palawan.
The fact that the baselines of KIG and Scarborough Shoal have
yet to be defined would not detract to the constitutionality of the law
in question. The resolution of the problem lies with the political
departments of the government.
All told, the concerns raised by the petitioners about the
diminution or the virtual dismemberment of the Philippine territory
by the enactment of RA 9522 are, to me, not well grounded. To
repeat, UNCLOS III pertains to a law on the seas, not territory. As
part of its Preamble,33 LOSC recognizes “the desirability of
establishing through this Convention, with due regard for the
sovereignty of all States, a legal order for the seas and oceans x x x.”
This brings me to the matter of transit passage of foreign vessels
through Philippine waters.
Apropos thereto, petitioners allege that RA 9522 violates the
nuclear weapons-free policy under Sec. 8, in relation to Sec. 16, Art.
II of the Constitution, and exposes the Philippines to marine
pollution hazards, since under the LOSC the Philippines supposedly
must give to ships of all states the right of innocent passage and the
right of archipelagic sea-lane passage.
The adverted Sec. 8, Art. II of the 1987 Constitution declares the
adoption and pursuit by the Philippines of “a policy of freedom from
nuclear weapons in its territory.” On the
_______________
33 Supra note 5.
523
VOL. 655, AUGUST 16, 2011 523

other hand, the succeeding Sec. l6 underscores the State’s firm

commitment “to protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and
harmony of nature.” Following the allegations of petitioners, these
twin provisions will supposedly be violated inasmuch as RA 9522
accedes to the right of innocent passage and the right of archipelagic
sea-lane passage provided under the LOSC. Therefore, ships of all
nations––be they nuclear-carrying warships or neutral commercial
vessels transporting goods––can assert the right to traverse the
waters within our islands.
A cursory reading of RA 9522 would belie petitioners’ posture.
In context, RA 9522 simply seeks to conform to our international
agreement on the setting of baselines and provides nothing about the
designation of archipelagic sea-lane passage or the regulation of
innocent passage within our waters. Again, petitioners have read
into the amendatory RA 9522 something not intended.
Indeed, the 1982 LOSC enumerates the rights and obligations of
archipelagic party-states in terms of transit under Arts. 51 to 53,
which are explained below:
“To safeguard, in explicit terms, the general balance struck by [Articles

51 and 52] between the need for passage through the area (other than straits
used for international navigation) and the archipelagic state’s need for
security, Article 53 gave the archipelagic state the right to regulate where
and how ships and aircraft pass through its territory by designating specific
sea lanes. Rights of passage through these archipelagic sea lanes are
regarded as those of transit passage:
(1) An archipelagic State may designate sea lanes and air routes
thereabove, suitable for safe, continuous and expeditious passage of foreign
ships and aircraft through or over its archipelagic waters and the adjacent
territorial sea.
(2) All ships and aircraft enjoy the right of archipelagic sea lanes
passage in such sea lanes and air routes.
524


(3) Archipelagic sea lanes passage is the exercise in accordance with
the present Convention of the rights of navigation and overflight in the
normal mode solely for the purpose of continuous, expeditious and
unobstructed transit between one part of the high seas or an exclusive
economic zone and another part of the high seas or an exclusive economic
zone.”34
But owing to the geographic structure and physical features of

the country, i.e., where it is “essentially a body of water studded
with islands, rather than islands with water around them,”35 the
Philippines has consistently maintained the conceptual unity of land
and water as a necessary element for territorial integrity,36 national
security (which may be compromised by the presence of warships
and surveillance ships on waters between the islands),37 and the
preservation of its maritime resources. As succinctly explained by
Minister Arturo Tolentino, the essence of the archipelagic concept is
“the dominion and sovereignty of the archipelagic State within its
baselines, which were so drawn as to preserve the territorial integrity
of the archipelago by the inseparable unity of the land and water
domain.”38 Indonesia, like the Philippines, in terms of geographic
reality, has expressed agreement with this interpretation of the
archipelagic con-
_______________
34 C. Ku, The Archipelagic States Concept and Regional Stability in Southeast
Asia, Case W. Res. J. Int’l L., Vol. 23:463, 469; citing 1958 U.N. Conference on the
Law of the Sea, Summary Records 44, Doc. A/Conf. 13/42.
35 Id.
36 Hiran W. Jayewardene, The Regime of Islands in International Law, AD
Dordrecht: Martinus Nijhoff Publishers, p. 103 (1990).
37 Id., at p. 112.
38 UNCLOS III Off. Rec., Vol. II, 264, par. 65, and also pars. 61-62 and 66; cited
in B. Kwiatkowska, “The Archipelagic Regime in Practice in the Philippines and
Indonesia – Making or Breaking International Law?”, International Journal of
Estuarine and Coastal Law, Vol. 6, No. 1, pp. 6-7.
525
VOL. 655, AUGUST 16, 2011 525

cept. So it was that in 1957, the Indonesian Government issued

the Djuanda Declaration, therein stating:
“[H]istorically, the Indonesian archipelago has been an entity since time

immemorial. In view of the territorial entirety and of preserving the wealth
of the Indonesian state, it is deemed necessary to consider all waters
between the islands and entire entity.
x x x On the ground of the above considerations, the Government states
that all waters around, between and connecting, the islands or parts of
islands belonging to the Indonesian archipelago irrespective of their
width or dimension are natural appurtenances of its land territory and
therefore an integral part of the inland or national waters subject to the
absolute sovereignty of Indonesia.”39 (Emphasis supplied.)
Hence, the Philippines maintains the sui generis character of our

archipelagic waters as equivalent to the internal waters of
continental coastal states. In other words, the landward waters
embraced within the baselines determined by RA 9522, i.e., all
waters around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions, form part of
the internal waters of the Philippines.40 Accordingly, such waters are
not covered by the jurisdiction of the LOSC and cannot be subjected
to the rights granted to foreign states in archipelagic waters, e.g., the
right of innocent passage,41 which is allowed only in the territorial
seas, or that area of the ocean comprising 12 miles from the
baselines of our archipelago; archipelagic sea-lane passage;42 over
flight;43 and traditional fishing rights.44
_______________
39 4 Whiteman D.G., INTERNATIONAL LAW 284 (1965); quoted in C. Ku, supra note
34, at p. 470.
40 1987 CONSTITUTION, Art. I.
41 LOSC, Arts. 52 and 54.
42 LOSC, Art. 53, par. 2.
44 LOSC, Art. 51.
526

Our position that all waters within our baselines are internal
waters, which are outside the jurisdiction of the 1982 LOSC,45 was
abundantly made clear by the Philippine Declaration at the time of
the signing of the LOSC on December 10, 1982. To reiterate,
paragraphs 5, 6 and 7 of the Declaration state:
5. The Convention shall not be construed as amending in any manner

any pertinent laws and Presidential decrees of Proclamation of the republic
of the Philippines; the Government x x x maintains and reserves the
right and authority to make any amendments to such laws, decrees or
proclamations pursuant to the provisions of the Philippine Constitution;
6. The provisions of the Convention on archipelagic passage through
sea lanes do not nullify or impair the sovereignty of the Philippines as an
archipelagic State over the sea lanes and do not deprive it of authority to
enact legislation to protect its sovereignty, independence and security;
7. The concept of archipelagic waters is similar to the concept of
internal waters under the Constitution of the Philippines and removes
straits connecting this water with the economic zone or high seas from
the rights of foreign vessels to transit passage for international
navigation. (Emphasis supplied.)46
More importantly, by the ratification of the 1987 Constitution on

February 2, 1987, the integrity of the Philippine state as comprising
both water and land was strengthened by the proviso in its first
article, viz.: “The waters around, between, and connecting the
islands of the [Philippine]
_______________
46 Cf. B. Kwiatkowska, supra note 38; citing J.D. Ingles, “The United Nations
Convention on the Law of the Sea: Implications of Philippine Ratification,” 9
Philippine Yil (1983) 48-9 and 61-2; and Congress of the Philippines, First Regular
Session, Senate, S. No. 232, Explanatory Note and An Act to Repeal Section 2
(concerning TS baselines around Sabah disputed with Malaysia) of the 1968 Act No.
5446.
527
VOL. 655, AUGUST 16, 2011 527
archipelago, regardless of their breadth and dimensions, form

part of the internal waters of the Philippines.” (emphasis
supplied)
In effect, contrary to petitioners’ allegations, the Philippines’
ratification of the 1982 LOSC did not matter-of-factly open our
internal waters to passage by foreign ships, either in the concept of
innocent passage or archipelagic sea-lane passage, in exchange for
the international community’s recognition of the Philippines as an
archipelagic state. The Filipino people, by ratifying the 1987
Constitution, veritably rejected the quid pro quo petitioners take as
being subsumed in that treaty.
Harmonized with the Declaration and the Constitution, the
designation of baselines made in RA 9522 likewise designates our
internal waters, through which passage by foreign ships is not a
right, but may be granted by the Philippines to foreign states but
only as a dissolvable privilege.
In view of the foregoing, I vote to DISMISS the Petition.
Petition dismissed.
Note.—The sovereign people may, if it so desired, go to the

extent of giving up a portion of its own territory to the Moros for the
sake of peace, for it can change the Constitution in any it wants, so
long as the change is not inconsistent with what, in international law,
is known as Jus Cogens. (Province of North Cotabato vs.
Government of the Republic of the Philippines Peace Panel on
Ancestral Domain [GRP], 568 SCRA 402 [2008])
——o0o——
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8/6/22, 11:11 PM SUPREME COURT REPORTS ANNOTATED VOLUME 655

G.R. No. 187167. August 16, 2011. *

PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY-LIST

VOL. 655, AUGUST 16, 2011 477

FOREIGN AFFAIRS, HON. ROLANDO ANDAYA, IN HIS

United Nations Convention on the Law of the Sea (UNCLOS III);

478 SUPREME COURT REPORTS ANNOTATED

Magallona vs. Ermita

pelagic baselines drawn in accordance with article 47. (Emphasis supplied)

VOL. 655, AUGUST 16, 2011 479

Magallona vs. Ermita

of “regime of islands,” whose islands generate their own applicable

480 SUPREME COURT REPORTS ANNOTATED

Magallona vs. Ermita

VOL. 655, AUGUST 16, 2011 481

Magallona vs. Ermita

SPECIAL CIVIL ACTION in the Supreme Court. Certiorari and

482 SUPREME COURT REPORTS ANNOTATED

This original action for the writs of certiorari and prohibition

In 1961, Congress passed Republic Act No. 3046 (RA 3046)2

ting typographical errors and reserving the drawing of baselines

484 SUPREME COURT REPORTS ANNOTATED

with these requirements, RA 9522 shortened one baseline, optimized

VOL. 655, AUGUST 16, 2011 485

opens the country’s waters landward of the baselines to maritime

486 SUPREME COURT REPORTS ANNOTATED

The petition raises the following issues:

The Ruling of the Court

On the threshold issues, we hold that (1) petitioners possess locus

On the Threshold Issues

Petitioners Possess Locus

VOL. 655, AUGUST 16, 2011 487

misuse of public funds,16 occasioned by the passage and

488 SUPREME COURT REPORTS ANNOTATED

to test the constitutionality of statutes,19 and indeed, of acts of other

RA 9522 is Not Unconstitutional

RA 9522 is a Statutory Tool to Demar-

VOL. 655, AUGUST 16, 2011 489

tional deﬁnition trumps any treaty or statutory provision denying the

490 SUPREME COURT REPORTS ANNOTATED

either straight or contoured, to serve as geographic starting points to

“Article 48. Measurement of the breadth of the territorial sea, the

Thus, baselines laws are nothing but statutory mechanisms for

VOL. 655, AUGUST 16, 2011 491

492 SUPREME COURT REPORTS ANNOTATED

waters,” prejudicing the livelihood of subsistence ﬁshermen.28 A

Extent of maritime area using RA Extent of maritime area

VOL. 655, AUGUST 16, 2011 493

Internal or 166,858 171,435

Thus, as the map below shows, the reach of the exclusive

494 SUPREME COURT REPORTS ANNOTATED

Further, petitioners’ argument that the KIG now lies outside

“SEC. 2. The baselines in the following areas over which the

Had Congress in RA 9522 enclosed the KIG and the

VOL. 655, AUGUST 16, 2011 495

Similarly, the length of one baseline that RA 3046 drew exceeded

496 SUPREME COURT REPORTS ANNOTATED

VOL. 655, AUGUST 16, 2011 497

ﬁes under the category of “regime of islands,” whose islands

“Section 2. The deﬁnition of the baselines of the territorial sea of the