ConstiRev: Session 1- Nature and Concept, Preamble, Article I |1

PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY-LIST REP. RISA zones and continental shelf.—Baselines laws such as RA 9522 are enacted by
HONTIVEROS, PROF. HARRY C. ROQUE, JR., AND UNIVERSITY OF THE UNCLOS III States parties to mark-out specific basepoints along their coasts
PHILIPPINES COLLEGE OF LAW STUDENTS, ALITHEA BARBARA ACAS, from which baselines are drawn, either straight or contoured, to serve as
VOLTAIRE ALFERES, CZARINA MAY ALTEZ, FRANCIS ALVIN ASILO, SHERYL geographic starting points to measure the breadth of the maritime zones and
BALOT, RUBY AMOR BARRACA, JOSE JAVIER BAUTISTA, ROMINA continental shelf. Article 48 of UNCLOS III on archipelagic States like ours
BERNARDO, VALERIE PAGASA BUENAVENTURA, EDAN MARRI CAÑETE, VANN could not be any clearer: Article 48. Measurement of the breadth of the
ALLEN DELA CRUZ, RENE DELORINO, PAULYN MAY DUMAN, SHARON territorial sea, the contiguous zone, the exclusive economic zone and the
ESCOTO, RODRIGO FAJARDO III, GIRLIE FERRER, RAOULLE OSEN FERRER, continental shelf.—The breadth of the territorial sea, the contiguous zone, the
CARLA REGINA GREPO, ANNA MARIE CECILIA GO, IRISH KAY KALAW, MARY exclusive economic zone and the continental shelf shall be measured from
ANN JOY LEE, MARIA LUISA MANALAYSAY, MIGUEL RAFAEL MUSNGI, archipelagic baselines drawn in accordance with article 47. (Emphasis
MICHAEL OCAMPO, JAKLYN HANNA PINEDA, WILLIAM RAGAMAT, MARICAR supplied)
RAMOS, ENRIK FORT REVILLAS, JAMES MARK TERRY RIDON, JOHANN
FRANTZ RIVERA IV, CHRISTIAN RIVERO, DIANNE MARIE ROA, NICHOLAS Same; Baselines laws are nothing but statutory mechanisms for United
SANTIZO, MELISSA CHRISTINA SANTOS, CRISTINE MAE TABING, VANESSA Nations Convention on the Law of the Sea (UNCLOS III) States parties to
ANNE TORNO, MARIA ESTER VANGUARDIA, and MARCELINO VELOSO III, delimit with precision the extent of their maritime zones and continental
petitioners, vs. HON. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE shelves.—Baselines laws are nothing but statutory mechanisms for UNCLOS
SECRETARY, HON. ALBERTO ROMULO, IN HIS CAPACITY AS SECRETARY OF III States parties to delimit with precision the extent of their maritime zones
THE DEPARTMENT OF FOREIGN AFFAIRS, HON. ROLANDO ANDAYA, IN HIS and continental shelves. In turn, this gives notice to the rest of the
CAPACITY AS SECRETARY OF THE DEPARTMENT OF BUDGET AND international community of the scope of the maritime space and submarine
MANAGEMENT, HON. DIONY VENTURA, IN HIS CAPACITY AS areas within which States parties exercise treaty-based rights, namely, the
ADMINISTRATOR OF THE NATIONAL MAPPING & RESOURCE INFORMATION exercise of sovereignty over territorial waters (Article 2), the jurisdiction to
AUTHORITY, and HON. HILARIO DAVIDE, JR., IN HIS CAPACITY AS enforce customs, fiscal, immigration, and sanitation laws in the contiguous
REPRESENTATIVE OF THE PERMANENT MISSION OF THE REPUBLIC OF THE zone (Article 33), and the right to exploit the living and non-living resources
PHILIPPINES TO THE UNITED NATIONS, respondents. in the exclusive economic zone (Article 56) and continental shelf (Article 77).

United Nations Convention on the Law of the Sea (UNCLOS III); Same; RA 9522 increased the Philippines’ total maritime space by
UNCLOS III has nothing to do with the acquisition or loss of territory.— 145,216 square nautical miles.—Petitioners’ assertion of loss of “about 15,000
UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a square nautical miles of territorial waters” under RA 9522 is similarly
multilateral treaty regulating, among others, sea-use rights over maritime unfounded both in fact and law. On the contrary, RA 9522, by optimizing the
zones (i.e., the territorial waters [12 nautical miles from the baselines], location of basepoints, increased the Philippines’ total maritime space
contiguous zone [24 nautical miles from the baselines], exclusive economic (covering its internal waters, territorial sea and exclusive economic zone) by
zone [200 nautical miles from the baselines]), and continental shelves that 145,216 square nautical miles.
UNCLOS III delimits. UNCLOS III was the culmination of decades-long
negotiations among United Nations members to codify norms regulating the United Nations Convention on the Law of the Sea (UNCLOS III); Congress’
conduct of States in the world’s oceans and submarine areas, recognizing decision to classify the Kalayaan Island Group (KIG) and the Scarborough
coastal and archipelagic States’ graduated authority over a limited span of Shoal as ‘Regime[s] of Islands’ manifests the Philippine State’s responsible
waters and submarine lands along their coasts. observance of its pacta sunt servanda obligation under UNCLOS III.—Far from
surrendering the Philippines’ claim over the KIG and the Scarborough Shoal,
Archipelagic Baselines of the Philippines (Republic Act No. 9522); Baselines Congress’ decision to classify the KIG and the Scarborough Shoal as
laws such as RA 9522 are enacted by United Nations Convention on the Law “‘Regime[s] of Islands’ under the Republic of the Philippines consistent with
of the Sea (UNCLOS III) States parties to mark-out specific basepoints along Article 121” of UNCLOS III manifests the Philippine State’s responsible
their coasts from which baselines are drawn, either straight or contoured, to observance of its pacta sunt servandaobligation under UNCLOS III. Under
serve as geographic starting points to measure the breadth of the maritime Article 121 of UNCLOS III, any “naturally formed area of land, surrounded by
 ConstiRev: Session 1- Nature and Concept, Preamble, Article I |2

water, which is above water at high tide,” such as portions of the KIG, qualifies archipelago and adjacent areas, as embodied in RA 9522, allows an
under the category of “regime of islands,” whose islands generate their own internationally-recognized delimitation of the breadth of the Philippines’
applicable maritime zones. 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
Same; The recognition of archipelagic States’ archipelago and the with the Constitution and our national interest.
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 SPECIAL CIVIL ACTION in the Supreme Court. Certiorari and Prohibition.
their baselines as one cohesive entity prevents the treatment of their islands
as separate islands under UNCLOS III. Separate islands generate their own The facts are stated in the opinion of the Court.
maritime zones, placing the waters between islands separated by more than
Harry L. Roque, Jr. Joel Ruiz Butuyan and Rommel Regalado Bagares for
24 nautical miles beyond the States’ territorial sovereignty, subjecting these
petitioners.
waters to the rights of other States under UNCLOS III.
The Solicitor General for respondents.
Same; United Nations Convention on the Law of the Sea (UNCLOS III)
creates a sui generis maritime space—the exclusive economic zone—in waters CARPIO, J.:
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, The Case
however, preserves the traditional freedom of navigation of other States that
attached to this zone beyond the territorial sea before UNCLOS III. This original action for the writs of certiorari and prohibition assails the
constitutionality of Republic Act No. 95221 (RA 9522) adjusting the country’s
Same; Absent an United Nations Convention on the Law of the Sea archipelagic baselines and classifying the baseline regime of nearby territories.
(UNCLOS III) compliant baselines law, an archipelagic State like the
Philippines will find itself devoid of internationally acceptable baselines from The Antecedents
where the breadth of its maritime zones and continental shelf is measured.—
Absent an UNCLOS III compliant baselines law, an archipelagic State like the In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the
Philippines will find itself devoid of internationally acceptable baselines from maritime baselines of the Philippines as an archipelagic State.3 This law
where the breadth of its maritime zones and continental shelf is measured. followed the framing of the Convention on the Territorial Sea and the
This is recipe for a two-fronted disaster: first, it sends an open invitation to Contiguous Zone in 1958 (UNCLOS I),4 codifying, among others, the sovereign
the seafaring powers to freely enter and exploit the resources in the waters right of States parties over their “territorial sea,” the breadth of which,
and submarine areas around our archipelago; and second, it weakens the however, was left undetermined. Attempts to fill this void during the second
country’s case in any international dispute over Philippine maritime space. round of negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus,
These are consequences Congress wisely avoided. domestically, RA 3046 remained unchanged for nearly five decades, save for
legislation passed in 1968 (Republic Act No. 5446 [RA 5446]) correcting
Same; Archipelagic Baselines of the Philippines (Republic Act No. 9522); typographical errors and reserving the drawing of baselines around Sabah in
The enactment of United Nations Convention on the Law of the Sea (UNCLOS North Borneo.
III) compliant baselines law for the Philippine archipelago and adjacent areas,
as embodied in RA 9522, allows an internationally-recognized delimitation of In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute
the breadth of the Philippines’ maritime zones and continental shelf.—The now under scrutiny. The change was prompted by the need to make RA 3046
enactment of UNCLOS III compliant baselines law for the Philippine
 ConstiRev: Session 1- Nature and Concept, Preamble, Article I |3

compliant with the terms of the United Nations Convention on the Law of the Treaty of Paris were the islands and all the waters found within the boundaries
Sea (UNCLOS III),5 which the Philippines ratified on 27 February of the rectangular area drawn under the Treaty of Paris.
1984.6 Among others, UNCLOS III prescribes the water-land ratio, length, and We left unacted petitioners’ prayer for an injunctive writ.
contour of baselines of archipelagic States like the Philippines7 and sets the
deadline for the filing of application for the extended continental The Issues
shelf.8 Complying with these requirements, RA 9522 shortened one baseline,
optimized the location of some basepoints around the Philippine archipelago The petition raises the following issues:
and classified adjacent territories, namely, the Kalayaan Island Group (KIG) A. Preliminarily—
and the Scarborough Shoal, as “regimes of islands” whose islands generate 1) Whether petitioners possess locus standi to bring this suit; and
their own applicable maritime zones.
2) Whether the writs of certiorari and prohibition are the proper
Petitioners, professors of law, law students and a legislator, in their respective remedies to assail the constitutionality of RA 9522.
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) B. On the merits, whether RA 9522 is unconstitutional.
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 The Ruling of the Court
Constitution,10embodying the terms of the Treaty of Paris11 and ancillary
treaties,12 and (2) RA 9522 opens the country’s waters landward of the On the threshold issues, we hold that (1) petitioners possess locus
baselines to maritime passage by all vessels and aircrafts, undermining standi to bring this suit as citizens and (2) the writs of certiorari and
Philippine sovereignty and national security, contravening the country’s prohibition are proper remedies to test the constitutionality of RA 9522. On
nuclear-free policy, and damaging marine resources, in violation of relevant the merits, we find no basis to declare RA 9522 unconstitutional.
constitutional provisions.13
On the Threshold Issues
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
Petitioners Possess Locus
argument of territorial diminution, petitioners facially attack RA 9522 for what Standi as Citizens
it excluded and included—its failure to reference either the Treaty of Paris or
Petitioners themselves undermine their assertion of locus standi as
Sabah and its use of UNCLOS III’s framework of regime of islands to
legislators and taxpayers because the petition alleges neither infringement of
determine the maritime zones of the KIG and the Scarborough Shoal.
legislative prerogative15 nor misuse of public funds,16 occasioned by the
passage and implementation of RA 9522. Nonetheless, we recognize
Commenting on the petition, respondent officials raised threshold issues
petitioners’ locus standi as citizens with constitutionally sufficient interest in
questioning (1) the petition’s compliance with the case or controversy
the resolution of the merits of the case which undoubtedly raises issues of
requirement for judicial review grounded on petitioners’ alleged lack of locus
national significance necessitating urgent resolution. Indeed, owing to the
standiand (2) the propriety of the writs of certiorari and prohibition to assail
peculiar nature of RA 9522, it is understandably difficult to find other litigants
the constitutionality of RA 9522. On the merits, respondents defended RA
possessing “a more direct and specific interest” to bring the suit, thus
9522 as the country’s compliance with the terms of UNCLOS III, preserving
satisfying one of the requirements for granting citizenship standing.17
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. The Writs of Certiorari and Prohibition
Are Proper Remedies to Test
Respondents also question the normative force, under international law, of
the Constitutionality of Statutes
petitioners’ assertion that what Spain ceded to the United States under the
 ConstiRev: Session 1- Nature and Concept, Preamble, Article I |4

In praying for the dismissal of the petition on preliminary grounds, contiguous zone [24 nautical miles from the baselines], exclusive economic
respondents seek a strict observance of the offices of the writs zone [200 nautical miles from the baselines]), and continental shelves that
of certiorari and prohibition, noting that the writs cannot issue absent any UNCLOS III delimits.23 UNCLOS III was the culmination of decades-long
showing of grave abuse of discretion in the exercise of judicial, quasi-judicial negotiations among United Nations members to codify norms regulating the
or ministerial powers on the part of respondents and resulting prejudice on conduct of States in the world’s oceans and submarine areas, recognizing
the part of petitioners.18 coastal and archipelagic States’ graduated authority over a limited span of
waters and submarine lands along their coasts.
Respondents’ submission holds true in ordinary civil proceedings. When this
Court exercises its constitutional power of judicial review, however, we have, On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS
by tradition, viewed the writs of certiorari and prohibition as proper remedial III States parties to mark-out specific basepoints along their coasts from which
vehicles to test the constitutionality of statutes,19 and indeed, of acts of other baselines are drawn, either straight or contoured, to serve as geographic
branches of government.20 Issues of constitutional import are sometimes starting points to measure the breadth of the maritime zones and continental
crafted out of statutes which, while having no bearing on the personal shelf. Article 48 of UNCLOS III on archipelagic States like ours could not be
interests of the petitioners, carry such relevance in the life of this nation that any clearer:
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 “Article 48. Measurement of the breadth of the territorial sea, the
notwithstanding. The statute sought to be reviewed here is one such law. contiguous zone, the exclusive economic zone and the continental shelf.—The
breadth of the territorial sea, the contiguous zone, the exclusive economic
RA 9522 is Not Unconstitutional zone and the continental shelf shall be measured from archipelagic
baselines drawn in accordance with article 47.” (Emphasis supplied)
RA 9522 is a Statutory Tool to Demar-
cate the Country’s Maritime Zones and Thus, baselines laws are nothing but statutory mechanisms for UNCLOS
III States parties to delimit with precision the extent of their maritime zones
Continental Shelf Under UNCLOS III,
and continental shelves. In turn, this gives notice to the rest of the
not to Delineate Philippine Territory
international community of the scope of the maritime space and submarine
Petitioners submit that RA 9522 “dismembers a large portion of the national areas within which States parties exercise treaty-based rights, namely, the
territory”21 because it discards the pre-UNCLOS III demarcation of Philippine exercise of sovereignty over territorial waters (Article 2), the jurisdiction to
territory under the Treaty of Paris and related treaties, successively encoded enforce customs, fiscal, immigration, and sanitation laws in the contiguous
in the definition of national territory under the 1935, 1973 and 1987 zone (Article 33), and the right to exploit the living and non-living resources
Constitutions. Petitioners theorize that this constitutional definition trumps any in the exclusive economic zone (Article 56) and continental shelf (Article 77).
treaty or statutory provision denying the Philippines sovereign control over
waters, beyond the territorial sea recognized at the time of the Treaty of Paris, Even under petitioners’ theory that the Philippine territory embraces the
that Spain supposedly ceded to the United States. Petitioners argue that from islands and all the waters within the rectangular area delimited in the Treaty
the Treaty of Paris’ technical description, Philippine sovereignty over territorial of Paris, the baselines of the Philippines would still have to be drawn in
waters extends hundreds of nautical miles around the Philippine archipelago, accordance with RA 9522 because this is the only way to draw the baselines
embracing the rectangular area delineated in the Treaty of Paris.22 in conformity with UNCLOS III. The baselines cannot be drawn from the
boundaries or other portions of the rectangular area delineated in the Treaty
Petitioners’ theory fails to persuade us. of Paris, but from the “outermost islands and drying reefs of the
archipelago.”24
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 UNCLOS III and its ancillary baselines laws play no role in the acquisition,
zones (i.e., the territorial waters [12 nautical miles from the baselines], enlargement or, as petitioners claim, diminution of territory. Under traditional
international law typology, States acquire (or conversely, lose) territory
 ConstiRev: Session 1- Nature and Concept, Preamble, Article I |5

through occupation, accretion, cession and prescription,25not by executing

multilateral treaties on the regulations of sea-use rights or enacting statutes Extent of maritime area using RA 3046, as Extent of maritime area using RA
to comply with the treaty’s terms to delimit maritime zones and continental amended, taking into account the Treaty of 9522, taking into account
shelves. Territorial claims to land features are outside UNCLOS III, and are Paris’ delimitation (in square nautical miles) UNCLOS III (in square nautical
instead governed by the rules on general international law.26
miles)

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- Internal or 166,858 171,435
eignty Over these Areas archipelagic
waters
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 Territorial 274,136 32,106
area.27 Petitioners add that the KIG’s (and Scarborough Shoal’s) exclusion Sea
from the Philippine archipelagic baselines results in the loss of “about 15,000
square nautical miles of territorial waters,” prejudicing the livelihood of Exclusive 382,669
subsistence fishermen.28 A comparison of the configuration of the baselines Economic
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 Zone
its congressional deliberations, vis-à-vis the Philippines’ obligations under
UNCLOS III, belie this view. TOTAL 440,994 586,210

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 Thus, as the map below shows, the reach of the exclusive economic zone
basepoints and adjust the length of one baseline (and thus comply with drawn under RA 9522 even extends way beyond the waters covered by the
UNCLOS III’s limitation on the maximum length of baselines). Under RA 3046, rectangular demarcation under the Treaty of Paris. Of course, where there are
as under RA 9522, the KIG and the Scarborough Shoal lie outside of the overlapping exclusive economic zones of opposite or adjacent States, there
baselines drawn around the Philippine archipelago. This undeniable will have to be a delineation of maritime boundaries in accordance with
cartographic fact takes the wind out of petitioners’ argument branding RA UNCLOS III.30
9522 as a statutory renunciation of the Philippines’ claim over the KIG,
assuming that baselines are relevant for this purpose. Further, petitioners’ argument that the KIG now lies outside Philippine
territory because the baselines that RA 9522 draws do not enclose the KIG is
Petitioners’ assertion of loss of “about 15,000 square nautical miles of negated by RA 9522 itself. Section 2 of the law commits to text the Philippines’
territorial waters” under RA 9522 is similarly unfounded both in fact and law. continued claim of sovereignty and jurisdiction over the KIG and the
On the contrary, RA 9522, by optimizing the location of Scarborough Shoal:
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
 ConstiRev: Session 1- Nature and Concept, Preamble, Article I |6

“SEC. 2. The baselines in the following areas over which the Scarborough Shoal, itong malaking circle sa ibaba, that is Kalayaan Group or
Philippines likewise exercises sovereignty and jurisdictionshall be the Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis pa natin ang
determined as “Regime of Islands” under the Republic of the Philippines dating archipelagic baselines para lamang masama itong dalawang circles,
consistent with Article 121 of the United Nations Convention on the Law of hindi na sila magkalapit at baka hindi na tatanggapin ng United Nations
the Sea (UNCLOS): because of the rule that it should follow the natural configuration of the
a) The Kalayaan Island Group as constituted under Presidential Decree archipelago.”34 (Emphasis supplied)
No. 1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal.” (Emphasis Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS
supplied) III’s limits. The need to shorten this baseline, and in addition, to optimize the
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as location of basepoints using current maps, became imperative as discussed
part of the Philippine archipelago, adverse legal effects would have ensued. by respondents:
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 “[T]he amendment of the baselines law was necessary to enable the
baselines shall not depart to any appreciable extent from the general Philippines to draw the outer limits of its maritime zones including the
configuration of the archipelago.” Second, Article 47 (2) of UNCLOS III extended continental shelf in the manner provided by Article 47 of [UNCLOS
requires that “the length of the baselines shall not exceed 100 nautical miles,” III]. As defined by R.A. 3046, as amended by R.A. 5446, the baselines suffer
save for three per cent (3%) of the total number of baselines which can reach from some technical deficiencies, to wit:
up to 125 nautical miles.31 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
Although the Philippines has consistently claimed sovereignty over the the maximum length allowed under Article 47(2) of the [UNCLOS III],
KIG32 and the Scarborough Shoal for several decades, these outlying areas which states that “The length of such baselines shall not exceed 100
are located at an appreciable distance from the nearest shoreline of the nautical miles, except that up to 3 per cent of the total number of
Philippine archipelago, such that any straight baseline loped around them from baselines enclosing any archipelago may exceed that length, up to a
the nearest basepoint will inevitably “depart to an appreciable extent from the maximum length of 125 nautical miles.”
general configuration of the archipelago.” 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
The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor- additional 2,195 nautical miles of water.
Santiago, took pains to emphasize the foregoing during the Senate 3. Finally, the basepoints were drawn from maps existing in 1968, and
deliberations: not established by geodetic survey methods. Accordingly, some of the
points, particularly along the west coasts of Luzon down to Palawan
“What we call the Kalayaan Island Group or what the rest of the world were later found to be located either inland or on water, not on low-
call[] the Spratlys and the Scarborough Shoal are outside our archipelagic water line and drying reefs as prescribed by Article 47.”35
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 Hence, far from surrendering the Philippines’ claim over the KIG and the
baseline shall not depart to any appreciable extent from the general Scarborough Shoal, Congress’ decision to classify the KIG and the
configuration of the archipelago.” So sa loob ng ating baseline, dapat Scarborough Shoal as “‘Regime[s] of Islands’ under the Republic of the
magkalapit ang mga islands. Dahil malayo ang Scarborough Shoal, hindi natin Philippines consistent with Article 121”36 of UNCLOS III manifests the
masasabing malapit sila sa atin although we are still allowed by international Philippine State’s responsible observance of its pacta sunt servandaobligation
law to claim them as our own. 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
This is called contested islands outside our configuration. We see that our as portions of the KIG, qualifies under the category of “regime of islands,”
archipelago is defined by the orange line which [we] call[] archipelagic whose islands generate their own applicable maritime zones.37
baseline. Ngayon, tingnan ninyo ang maliit na circle doon sa itaas, that is
 ConstiRev: Session 1- Nature and Concept, Preamble, Article I |7

Statutory Claim Over Sabah under sovereignty over such waters and their air space, bed and subsoil,
RA 5446 Retained and the resources contained therein.” (Emphasis supplied)
Petitioners’ argument for the invalidity of RA 9522 for its failure to
textualize the Philippines’ claim over Sabah in North Borneo is also untenable. The fact of sovereignty, however, does not preclude the operation of
Section 2 of RA 5446, which RA 9522 did not repeal, keeps open the door for municipal and international law norms subjecting the territorial sea or
drawing the baselines of Sabah: archipelagic waters to necessary, if not marginal, burdens in the interest of
maintaining unimpeded, expeditious international navigation, consistent with
“Section 2. The definition of the baselines of the territorial sea of the the international law principle of freedom of navigation. Thus, domestically,
Philippine Archipelago as provided in this Act is without prejudice to the the political branches of the Philippine government, in the competent
delineation of the baselines of the territorial sea around the territory discharge of their constitutional powers, may pass legislation designating
of Sabah, situated in North Borneo, over which the Republic of the routes within the archipelagic waters to regulate innocent and sea lanes
Philippines has acquired dominion and sovereignty.” (Emphasis passage.40
supplied)
Indeed, bills drawing nautical highways for sea lanes passage are now
UNCLOS III and RA 9522 not Incom- pending in Congress.41
patible with the Constitution’s Delinea-
tion of Internal Waters In the absence of municipal legislation, international law norms, now codified
As their final argument against the validity of RA 9522, petitioners contend in UNCLOS III, operate to grant innocent passage rights over the territorial
that the law unconstitutionally “converts” internal waters into archipelagic sea or archipelagic waters, subject to the treaty’s limitations and conditions
waters, hence subjecting these waters to the right of innocent and sea lanes for their exercise.42 Significantly, the right of innocent passage is a customary
passage under UNCLOS III, including overflight. Petitioners extrapolate that international law,43 thus automatically incorporated in the corpus of Philippine
these passage rights indubitably expose Philippine internal waters to nuclear law.44 No modern State can validly invoke its sovereignty to absolutely forbid
and maritime pollution hazards, in violation of the Constitution.38 innocent passage that is exercised in accordance with customary international
law without risking retaliatory measures from the international community.
Whether referred to as Philippine “internal waters” under Article I of the
Constitution39 or as “archipelagic waters” under UNCLOS III (Article 49 [1]), The fact that for archipelagic States, their archipelagic waters are subject to
the Philippines exercises sovereignty over the body of water lying landward of both the right of innocent passage and sea lanes passage45 does not place
the baselines, including the air space over it and the submarine areas them in lesser footing vis-à-vis continental coastal States which are subject,
underneath. UNCLOS III affirms this: in their territorial sea, to the right of innocent passage and the right of transit
“Article 49. Legal status of archipelagic waters, of the air space over passage through international straits. The imposition of these passage rights
archipelagic waters and of their bed and subsoil.— through archipelagic waters under UNCLOS III was a concession by
1. The sovereignty of an archipelagic State extends to the archipelagic States, in exchange for their right to claim all the waters landward
waters enclosed by the archipelagic baselines drawn in accordance with of their baselines, regardless of their depth or distance from the coast, as
article 47, described as archipelagic waters, regardless of their depth or archipelagic waters subject to their territorial sovereignty. More importantly,
distance from the coast. the recognition of archipelagic States’ archipelago and the waters enclosed by
2. This sovereignty extends to the air space over the their baselines as one cohesive entity prevents the treatment of their islands
archipelagic waters, as well as to their bed and subsoil, and the as separate islands under UNCLOS III.46 Separate islands generate their own
resources contained therein. maritime zones, placing the waters between islands separated by more than
xxxx 24 nautical miles beyond the States’ territorial sovereignty, subjecting these
4. The regime of archipelagic sea lanes passage established in this Part shall waters to the rights of other States under UNCLOS III.47
not in other respects affect the status of the archipelagic waters, Petitioners’ invocation of non-executory constitutional provisions in Article II
including the sea lanes, or the exercise by the archipelagic State of its (Declaration of Principles and State Policies) must also fail. Our present state
of jurisprudence considers the provisions in Article II as mere legislative
 ConstiRev: Session 1- Nature and Concept, Preamble, Article I |8

guides, which, absent enabling legislation, “do not embody judicially

enforceable constitutional rights x x x.”49 Article II provisions serve as guides The enactment of UNCLOS III compliant baselines law for the Philippine
in formulating and interpreting implementing legislation, as well as in archipelago and adjacent areas, as embodied in RA 9522, allows an
interpreting executory provisions of the Constitution. Although Oposa v. internationally-recognized delimitation of the breadth of the Philippines’
Factoran50 treated the right to a healthful and balanced ecology under Section maritime zones and continental shelf. RA 9522 is therefore a most vital step
16 of Article II as an exception, the present petition lacks factual basis to on the part of the Philippines in safeguarding its maritime zones, consistent
substantiate the claimed constitutional violation. The other provisions with the Constitution and our national interest.
petitioners cite, relating to the protection of marine wealth (Article XII, Section WHEREFORE, we DISMISS the petition.
2, paragraph 251) and subsistence fishermen (Article XIII, Section 752), are SO ORDERED.
not violated by RA 9522.
Corona (C.J.), Leonardo-De Castro, Brion, Peralta,
In fact, the demarcation of the baselines enables the Philippines to delimit its Bersamin, Del Castillo, Villarama, Jr., Mendoza andSereno, JJ., concur.
exclusive economic zone, reserving solely to the Philippines the exploitation Velasco, Jr., J., Pls. See Concurring Opinion.
of all living and non-living resources within such zone. Such a maritime Abad, J., I certify that Mr. Justice Abad left his concurring vote.
delineation binds the international community since the delineation is in strict Perez, J., On Leave.
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 CONCURRING OPINION
bound by it.
VELASCO, JR., J.:
UNCLOS III favors States with a long coastline like the Philippines.
UNCLOS III creates a sui generis maritime space—the exclusive economic I concur with the ponencia and add the following complementary
zone—in waters previously part of the high seas. UNCLOS III grants new arguments and observations:
rights to coastal States to exclusively exploit the resources found within this A statute is a product of hard work and earnest studies of Congress to ensure
zone up to 200 nautical miles.53 UNCLOS III, however, preserves the that no constitutional provision, prescription or concept is infringed. Withal,
traditional freedom of navigation of other States that attached to this zone before a law, in an appropriate proceeding, is nullified, an unequivocal breach
beyond the territorial sea before UNCLOS III. of, or a clear conflict with, the Constitution must be demonstrated in such a
way as to leave no doubt in the mind of the Court.1In the same token, if a law
RA 9522 and the Philippines’ Maritime Zones 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
Petitioners hold the view that, based on the permissive text of UNCLOS III, legal questions,2 it should strike such law down, however laudable its
Congress was not bound to pass RA 9522.54 We have looked at the relevant purpose/s might be and regardless of the deleterious effect such action may
provision of UNCLOS III55 and we find petitioners’ reading plausible. carry in its wake.
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 Challenged in these proceedings is the constitutionality of Republic Act
steep price. Absent an UNCLOS III compliant baselines law, an archipelagic (RA 9522) entitled “An Act to Amend Certain Provisions of [RA] 3046, as
State like the Philippines will find itself devoid of internationally acceptable Amended by [RA] 5446 to Define the Archipelagic Baselines Of The Philippines
baselines from where the breadth of its maritime zones and continental shelf and for Other Purposes.” For perspective, RA 3046, “An Act to Define the
is measured. This is recipe for a two-fronted disaster: first, it sends an open Baselines of the Territorial Sea of the Philippines, was enacted in 1961 to
invitation to the seafaring powers to freely enter and exploit the resources in comply with the United Nations Convention on the Law of the Sea (UNCLOS)
the waters and submarine areas around our archipelago; and second, it I. Eight years later, RA 5446 was enacted to amend typographical errors
weakens the country’s case in any international dispute over Philippine relating to coordinates in RA 3046. The latter law also added a provision
maritime space. These are consequences Congress wisely avoided. asserting Philippine sovereignty over Sabah.
 ConstiRev: Session 1- Nature and Concept, Preamble, Article I |9

“The Government of the Republic of the Philippines [GRP] hereby

As its title suggests, RA 9522 delineates archipelagic baselines of the country, manifests that in signing the 1982 United Nations Convention on the Law of
amending in the process the old baselines law, RA 3046. Everybody is agreed the Sea, it does so with the understandings embodied in this declaration,
that RA 9522 was enacted in response to the country’s commitment to made under the provisions of Article 310 of the Convention, to wit:
conform to some 1982 Law of the Sea Convention (LOSC) or UNCLOS III
provisions to define new archipelagic baselines through legislation, the The signing of the Convention by the [GRP] shall not in any manner
Philippines having signed3 and eventually ratified4 this multilateral treaty. The impair or prejudice the sovereign rights of the [RP] under and
Court can take judicial notice that RA 9522 was registered and deposited with arising from the Constitution of the Philippines;
the UN on April 4, 2009.
Such signing shall not in any manner affect the sovereign rights of the [RP]
As indicated in its Preamble,5 1982 LOSC aims, among other things, to as successor of the United States of America [USA], under and arising out of
establish, with due regard for the sovereignty of all States, “a legal order for the Treaty of Paris between Spain and the United States of America of
the seas and oceans which will facilitate international communication, and will December 10, 1898, and the Treaty of Washington between the [USA] and
promote the peaceful uses of the seas and oceans.” One of the measures to Great Britain of January 2, 1930;
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 xxxx
III which deals with baselines:
1. An archipelagic State may draw straight archipelagic baselines Such signing shall not in any manner impair or prejudice the sovereignty of
joining the outermost points of the outermost islands and drying reefs the [RP] over any territory over which it exercises sovereign authority, such
of the archipelago provided that within such baselines are included the main as the Kalayaan Islands, and the waters appurtenant thereto;
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. The Convention shall not be construed as amending in any manner any
pertinent laws and Presidential Decrees or Proclamations of the Republic of
2. The length of such baseline shall not exceed 100 nautical miles, except the Philippines. The [GRP] maintains and reserves the right and authority to
that up to 3 per cent of the total number of baselines enclosing any make any amendments to such laws, decrees or proclamations pursuant to
archipelago may exceed that length, up to a maximum length of 125 nautical the provisions of the Philippine Constitution;
miles. The provisions of the Convention on archipelagic passage through sea lanes
do not nullify or impair the sovereignty of the Philippines as an archipelagic
3. The drawing of such baselines shall not depart to any appreciable state over the sea lanes and do not deprive it of authority to enact legislation
extent from the general configuration of the archipelago. to protect its sovereignty independence and security;

xxxx The concept of archipelagic waters is similar to the concept of internal waters
under the Constitution of the Philippines, and removes straits connecting
9. The archipelagic State shall give due publicity to such charts or lists of these waters with the economic zone or high sea from the rights of foreign
geographical co-ordinates and shall deposit a copy of each such chart or list vessels to transit passage for international navigation.”8 (Emphasis added.)
with the Secretary-General of the United Nations.6 (Emphasis added.)
Petitioners challenge the constitutionality of RA 9522 on the principal
To obviate, however, the possibility that certain UNCLOS III baseline ground that the law violates Section 1, Article I of the 1987 Constitution on
provisions would, in their implementation, undermine its sovereign and/or national territory which states:
jurisdictional interests over what it considers its territory,7the Philippines, “Section 1. The national territory comprises the Philippine
when it signed UNCLOS III on December 10, 1982, made the following archipelago, with all the islands and waters embraced therein, and all other
“Declaration” to said treaty: territories over which the Philippines has sovereignty or jurisdiction,
consisting of its terrestrial, fluvial and aerial domains, including its territorial
 ConstiRev: Session 1- Nature and Concept, Preamble, Article I | 10

sea, the seabed, the subsoil, the insular shelves, and other submarine Philippine archipelago which is the ancestral home of the Filipino people and
areas. The waters around, between, and connecting the islands of the which is composed of all the islands and waters embraced therein…”
archipelago, regardless of their breadth and dimensions, form part of the
internal waters of the Philippines.” (Emphasis supplied.) What was the intent behind the designation of the Philippines as an
“archipelago”? x x x Asked by Delegate Roselller Lim (Zamboanga) where
According to Fr. Joaquin Bernas, S.J., himself a member of the 1986 this archipelago was, Committee Chairman Quintero answered that it was
Constitutional Commission which drafted the 1987 Constitution, the the area delineated in the Treaty of Paris. He said that objections to the
aforequoted Section 1 on national territory was “in substance a copy of its colonial implication of mentioning the Treaty of Paris was responsible for the
1973 counterpart.”9Art. I of the 1973 Constitution reads: omission of the express mention of the Treaty of Paris.

“Section 1. The national territory comprises the Philippine archipelago, Report No. 01 of the Committee on National Territory had in fact been
with all the islands and waters embraced therein, and all other territories explicit in its delineation of the expanse of this archipelago. It said:
belonging to the Philippines by historic right or legal title, including
the territorial sea, the air space, the subsoil, the insular shelves, and other Now if we plot on a map the boundaries of this archipelago as set
submarine areas over which the Philippines has sovereignty or forth in the Treaty of Paris, a huge or giant rectangle will emerge,
jurisdiction. The waters around, between, and connecting the islands measuring about 600 miles in width and 1,200 miles in length. Inside
of the archipelago, regardless of their breadth and dimensions, form part this giant rectangle are the 7,100 islands comprising the Philippine
of the internal waters of the Philippines.” (Emphasis added.) 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
As may be noted both constitutions speak of the “Philippine archipelago,” miles. From the west coast of Luzon to the western boundary of this
and, via the last sentence of their respective provisions, assert the country’s giant rectangle in the China sea, there is a distance of over 150 miles.
adherence to the “archipelagic principle.” Both constitutions divide the
national territory into two main groups: (1) the Philippine archipelago and (2) When the [US] Government enacted the Jones Law, the Hare-
other territories belonging to the Philippines. So what or where is Philippine Hawes Cutting Law and the Tydings McDuffie Law, it in reality
archipelago contemplated in the 1973 and 1987 Constitutions then? Fr. Bernas announced to the whole world that it was turning over to the
answers the poser in the following wise: Government of the Philippine Islands an archipelago (that is a big body
of water studded with islands), the boundaries of which archipelago
“Article I of the 1987 Constitution cannot be fully understood without are set forth in Article III of the Treaty of Paris. It also announced to
reference to Article I of the 1973 Constitution. x x x the whole world that the waters inside the giant rectangle belong to
xxxx the Philippines—that they are not part of the high seas.
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 When Spain signed the Treaty of Paris, in effect she announced to
Constitution] from its first draft to its final form. the whole world that she was ceding to the [US] the Philippine
Section 1 of the first draft submitted by the Committee on National archipelago x x x, that this archipelago was bounded by lines specified
Territory almost literally reproduced Article I of the 1935 Constitution x x x. in the treaty, and that the archipelago consisted of the huge body of
Unlike the 1935 version, however, the draft designated the Philippines not water inside the boundaries and the islands inside said boundaries.
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 The delineation of the extent of the Philippine archipelago must be
further designated the Philippine archipelago, as the historic home of the understood in the context of the modifications made both by the
Filipino people from its beginning.11 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
After debates x x x, the Committee reported out a final draft, which Sulu and the Turtle and Mangsee Islands. However, x x x the definition of the
became the initially approved version: “The national territory consists of the archipelago did not include the Batanes group[, being] outside the boundaries
 ConstiRev: Session 1- Nature and Concept, Preamble, Article I | 11

of the Philippine archipelago as set forth in the Treaty of Paris. In literal terms, deprives the Philippines of what has long been established as part and parcel
therefore, the Batanes islands would come not under the Philippine of its national territory under the Treaty of Paris, as supplemented by the
archipelago but under the phrase “all other territories belong to the aforementioned 1900 Treaty of Washington or, to the same effect, revises the
Philippines.”12 x x x (Emphasis added.) definition on or dismembers the national territory. Pushing their case,
petitioners argue that the constitutional definition of the national territory
From the foregoing discussions on the deliberations of the provisions on cannot be remade by a mere statutory act.20 As another point, petitioners
national territory, the following conclusion is abundantly evident: the parlay the theory that the law in question virtually weakens the country’s
“Philippine archipelago” of the 1987 Constitution is the same “Philippine territorial claim over the Kalayaan Island Group (KIG) and Sabah, both of
archipelago” referred to in Art. I of the 1973 Constitution which in turn which come under the category of “other territories” over the Philippines has
corresponds to the territory defined and described in Art. 1 of the 1935 sovereignty or jurisdiction. Petitioners would also assail the law on grounds
Constitution,13which pertinently reads: related to territorial sea lanes and internal waters transit passage by foreign
vessels.
“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 It is remarkable that petitioners could seriously argue that RA 9522 revises
day of December, [1898], the limits of which are set forth in Article III of said the Philippine territory as defined in the Constitution, or worse, constitutes an
treaty, together with all the islands in the treaty concluded at Washington, abdication of territory.
between the [US] and Spain on November [7, 1900] and the treaty concluded
between the [US] and Great Britain x x x.” 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
While the Treaty of Paris is not mentioned in both the 1973 and 1987 orderly sea use rights over maritime zones. Or as the ponencia aptly states,
Constitutions, its mention, so the nationalistic arguments went, being “a RA 9522 aims to mark-out specific base points along the Philippine coast from
repulsive reminder of the indignity of our colonial past,”14 it is at once clear which baselines are drawn to serve as starting points to measure the breadth
that the Treaty of Paris had been utilized as key reference point in the of the territorial sea and maritime zones.21 The baselines are set to define
definition of the national territory. the sea limits of a state, be it coastal or archipelagic, under the
UNCLOS III regime. By setting the baselines to conform to the
On the other hand, the phrase “all other territories over which the Philippines prescriptions of UNCLOS III, RA 9522 did not surrender any
has sovereignty or jurisdiction,” found in the 1987 Constitution, which territory, as petitioners would insist at every turn, for UNCLOS III is
replaced the deleted phrase “all territories belonging to the Philippines by concerned with setting order in the exercise of sea-use rights, not
historic right or legal title”15 found in the 1973 Constitution, covers areas the acquisition or cession of territory. And let it be noted that under
linked to the Philippines with varying degrees of certainty.16 Under this UNCLOS III, it is recognized that countries can have
category would fall: (a) Batanes, which then 1971 Convention Delegate territories outside their baselines. Far from having a dismembering
Eduardo Quintero, Chairperson of the Committee on National Territory, effect, then, RA 9522 has in a limited but real sense increased the
described as belonging to the Philippines in all its history;17(b) Sabah, over country’s maritime boundaries. How this situation comes about was
which a formal claim had been filed, the so-called Freedomland (a group of extensively explained by then Minister of State and head of the Philippine
islands known as Spratleys); and (c) any other territory, over which the delegation to UNCLOS III Arturo Tolentino in his sponsorship speech22 on the
Philippines had filed a claim or might acquire in the future through recognized concurrence of the Batasang Pambansa with the LOSC:
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 “x x x x
claims to areas over which the Philippines does not actually exercise
sovereignty.19 Then, we should consider, Mr. Speaker, that under the archipelagic principle,
the whole area inside the archipelagic base lines become a unified whole and
Upon the foregoing perspective and going into specifics, petitioners would the waters between the islands which formerly were regarded by international
have RA 9522 stricken down as unconstitutional for the reasons that it law as open or international seas now become waters under the complete
 ConstiRev: Session 1- Nature and Concept, Preamble, Article I | 12

sovereignty of the Filipino people. In this light there would be an additional the law will complete the bona fides of the Philippines vis-a-vis the law of the
area of 141,800 square nautical miles inside the base lines that will be sea treaty.
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 It may be that baseline provisions of UNCLOS III, if strictly implemented, may
the base lines and 141,531,000 hectares inside the base lines, total have an imposing impact on the signatory states’ jurisdiction and even their
93,742,275 hectares as a total gain in the waters under Philippine jurisdiction. sovereignty. But this actuality, without more, can hardly provide a justifying
dimension to nullify the complying RA 9522. As held by the Court in Bayan
From a pragmatic standpoint, therefore, the advantage to our country and Muna v. Romulo,27 treaties and international agreements have a limiting effect
people not only in terms of the legal unification of land and waters of the on the otherwise encompassing and absolute nature of sovereignty. By their
archipelago in the light of international law, but also in terms of the vast voluntary acts, states may decide to surrender or waive some aspects of their
resources that will come under the dominion and jurisdiction of the Republic sovereignty. The usual underlying consideration in this partial surrender may
of the Philippines, your Committee on Foreign Affairs does not hesitate to ask be the greater benefits derived from a pact or reciprocal undertaking. On the
this august Body to concur in the Convention by approving the resolution premise that the Philippines has adopted the generally accepted principles of
before us today. international law as part of the law of the land, a portion of sovereignty may
be waived without violating the Constitution.
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 As a signatory of the 1982 LOSC, it behooves the Philippines to honor its
beneficiaries under the Convention on the Law of the Sea.” obligations thereunder. Pacta sunt servanda, a basic international law
Lest it be overlooked, the constitutional provision on national territory, as postulate that “every treaty in force is binding upon the parties to it and must
couched, is broad enough to encompass RA 9522’s definition of the be performed by them in good faith.”28 The exacting imperative of this
archipelagic baselines. To reiterate, the laying down of baselines is not a mode principle is such that a state may not invoke provisions in its constitution or
of acquiring or asserting ownership a territory over which a state exercises its laws as an excuse for failure to perform this duty.”29
sovereignty. They are drawn for the purpose of defining or establishing the
maritime areas over which a state can exercise sovereign rights. Baselines are The allegation that Sabah has been surrendered by virtue of RA 9522,
used for fixing starting point from which the territorial belt is measured which supposedly repealed the hereunder provision of RA 5446, is likewise
seawards or from which the adjacent maritime waters are measured. Thus, unfounded.
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 “Section 2. The definition of the baselines of the territorial sea of the
the 1982 LOSC provides that the Exclusive Economic Zone (EEZ) “shall not Philippine Archipelago as provided in this Act is without prejudice to the
extend beyond 200 nautical miles from the baselines from which the breadth delineation of the baselines of the territorial sea around the territory of Sabah,
of the territorial sea is measured.”24 Most important to note is that the situated in North Borneo, over which the Republic of the Philippines has
baselines indicated under RA 9522 are derived from Art. 47 of the 1982 LOSC acquired dominion and sovereignty.”
which was earlier quoted. There is nothing in RA 9522 indicating a clear intention to supersede Sec. 2
of RA 5446. Petitioners obviously have read too much into RA 9522’s
Since the 1987 Constitution’s definition of national territory does not amendment on the baselines found in an older law. Aside from setting the
delimit where the Philippine’s baselines are located, it is up to the political country’s baselines, RA 9522 is, in its Sec. 3, quite explicit in its reiteration of
branches of the government to supply the deficiency. Through Congress, the the Philippines’ exercise of sovereignty, thus:
Philippines has taken an official position regarding its baselines to the
international community through RA 3046,25 as amended by RA 544626 and “Section 3. This Act affirms that the Republic of the Philippines has
RA 9522. When the Philippines deposited a copy of RA 9522 with the UN dominion, sovereignty and jurisdiction over all portions of the national territory
Secretary General, we effectively complied in good faith with our obligation as defined in the Constitution and by provisions of applicable laws including,
under the 1982 LOSC. A declaration by the Court of the constitutionality of without limitation, Republic Act No. 7160, otherwise known as the Local
Government Code of 1991, as amended.”
 ConstiRev: Session 1- Nature and Concept, Preamble, Article I | 13

does not in any manner affect the Philippines’ consistent position with regard
To emphasize, baselines are used to measure the breadth of the territorial to sovereignty over KIG. It does not affect the Philippines’ other acts of
sea, the contiguous zone, the exclusive economic zone and the continental ownership such as occupation or amend Presidential Decree No. 1596, which
shelf. Having KIG and the Scarborough Shoal outside Philippine baselines will declared KIG as a municipality of Palawan.
not diminish our sovereignty over these areas. Art. 46 of UNCLOS III in
fact recognizes that an archipelagic state, such as the Philippines, is The fact that the baselines of KIG and Scarborough Shoal have yet to be
a state “constituted wholly by one or more archipelagos and may defined would not detract to the constitutionality of the law in question. The
include other islands.”(emphasis supplied) The “other islands” referred to resolution of the problem lies with the political departments of the
in Art. 46 are doubtless islands not forming part of the archipelago but are government.
nevertheless part of the state’s territory.
All told, the concerns raised by the petitioners about the diminution or the
The Philippines’ sovereignty over KIG and Scarborough Shoal are, thus, in virtual dismemberment of the Philippine territory by the enactment of RA 9522
no way diminished. Consider: Other countries such as Malaysia and the United are, to me, not well grounded. To repeat, UNCLOS III pertains to a law
States have territories that are located outside its baselines, yet there is no on the seas, not territory. As part of its Preamble,33 LOSC recognizes “the
territorial question arising from this arrangement.30 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.”
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 This brings me to the matter of transit passage of foreign vessels through
law “reiterates our sovereignty over the Kalayaan Group of Islands declared Philippine waters.
as part of the Philippine territory under Presidential Decree No. 1596. As part
of the Philippine territory, they shall be considered as a ‘regime of islands’ Apropos thereto, petitioners allege that RA 9522 violates the nuclear
under Article 121 of the Convention.”31Thus, instead of being in the nature of weapons-free policy under Sec. 8, in relation to Sec. 16, Art. II of the
a “treasonous surrender” that petitioners have described it to be, RA 9522 Constitution, and exposes the Philippines to marine pollution hazards, since
even harmonizes our baseline laws with our international agreements, without under the LOSC the Philippines supposedly must give to ships of all states the
limiting our territory to those confined within the country’s baselines. right of innocent passage and the right of archipelagic sea-lane passage.

Contrary to petitioners’ contention, the classification of KIG and the The adverted Sec. 8, Art. II of the 1987 Constitution declares the adoption
Scarborough Shoal as falling under the Philippine’s regime of islands is not and pursuit by the Philippines of “a policy of freedom from nuclear weapons
constitutionally objectionable. Such a classification serves as compliance with in its territory.” On the other hand, the succeeding Sec. l6 underscores the
LOSC and the Philippines’ assertion of sovereignty over KIG and Scarborough State’s firm commitment “to protect and advance the right of the people to a
Shoal. In setting the baseline in KIG and Scarborough Shoal, RA 9522 states balanced and healthful ecology in accord with the rhythm and harmony of
that these are areas “over which the Philippines likewise exercises sovereignty nature.” Following the allegations of petitioners, these twin provisions will
and jurisdiction.” It is, thus, not correct for petitioners to claim that the supposedly be violated inasmuch as RA 9522 accedes to the right of innocent
Philippines has lost 15,000 square nautical miles of territorial waters upon passage and the right of archipelagic sea-lane passage provided under the
making this classification. Having 15,000 square nautical miles of Philippine LOSC. Therefore, ships of all nations––be they nuclear-carrying warships or
waters outside of our baselines, to reiterate, does not translate to a surrender neutral commercial vessels transporting goods––can assert the right to
of these waters. The Philippines maintains its assertion of ownership over traverse the waters within our islands.
territories outside of its baselines. Even China views RA 9522 as an assertion
of ownership, as seen in its Protest32filed with the UN Secretary-General upon A cursory reading of RA 9522 would belie petitioners’ posture. In context,
the deposit of RA 9522. RA 9522 simply seeks to conform to our international agreement on the
We take judicial notice of the effective occupation of KIG by the setting of baselines and provides nothing about the designation of archipelagic
Philippines. Petitioners even point out that national and local elections are sea-lane passage or the regulation of innocent passage within our waters.
regularly held there. The classification of KIG as under a “regime of islands”
 ConstiRev: Session 1- Nature and Concept, Preamble, Article I | 14

Again, petitioners have read into the amendatory RA 9522 something not “[H]istorically, the Indonesian archipelago has been an entity since time
intended. 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
Indeed, the 1982 LOSC enumerates the rights and obligations of the islands and entire entity.
archipelagic party-states in terms of transit under Arts. 51 to 53, which are
explained below: x x x On the ground of the above considerations, the Government states
that all waters around, between and connecting, the islands or parts
“To safeguard, in explicit terms, the general balance struck by [Articles 51 of islands belonging to the Indonesian archipelago irrespective of their
and 52] between the need for passage through the area (other than straits width or dimension are natural appurtenances of its land territory and
used for international navigation) and the archipelagic state’s need for therefore an integral part of the inland or national waters subject to
security, Article 53 gave the archipelagic state the right to regulate where and the absolute sovereignty of Indonesia.”39 (Emphasis supplied.)
how ships and aircraft pass through its territory by designating specific sea
lanes. Rights of passage through these archipelagic sea lanes are regarded as Hence, the Philippines maintains the sui generis character of
those of transit passage: our archipelagic waters as equivalent to the internal waters of
continental coastal states. In other words, the landward waters embraced
(1) An archipelagic State may designate sea lanes and air routes within the baselines determined by RA 9522, i.e., all waters around, between,
thereabove, suitable for safe, continuous and expeditious passage of foreign and connecting the islands of the archipelago, regardless of their breadth and
ships and aircraft through or over its archipelagic waters and the adjacent dimensions, form part of the internal waters of the Philippines.40 Accordingly,
territorial sea. such waters are not covered by the jurisdiction of the LOSC and cannot be
(2) All ships and aircraft enjoy the right of archipelagic sea lanes passage subjected to the rights granted to foreign states in archipelagic waters, e.g.,
in such sea lanes and air routes. the right of innocent passage,41which is allowed only in the territorial seas, or
(3) Archipelagic sea lanes passage is the exercise in accordance with that area of the ocean comprising 12 miles from the baselines of our
the present Convention of the rights of navigation and overflight in the normal archipelago; archipelagic sea-lane passage;42 over flight;43and traditional
mode solely for the purpose of continuous, expeditious and unobstructed fishing rights.44
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 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
But owing to the geographic structure and physical features of the by the Philippine Declaration at the time of the signing of the LOSC on
country, i.e., where it is “essentially a body of water studded with islands, December 10, 1982. To reiterate, paragraphs 5, 6 and 7 of the Declaration
rather than islands with water around them,”35 the Philippines has consistently state:
maintained the conceptual unity of land and water as a necessary element for
territorial integrity,36 national security (which may be compromised by the 5. The Convention shall not be construed as amending in any manner
presence of warships and surveillance ships on waters between the any pertinent laws and Presidential decrees of Proclamation of the republic of
islands),37 and the preservation of its maritime resources. As succinctly the Philippines; the Government x x x maintains and reserves the right
explained by Minister Arturo Tolentino, the essence of the archipelagic and authority to make any amendments to such laws, decrees or
concept is “the dominion and sovereignty of the archipelagic State within its proclamations pursuant to the provisions of the Philippine
baselines, which were so drawn as to preserve the territorial integrity of the Constitution;
archipelago by the inseparable unity of the land and water
domain.”38 Indonesia, like the Philippines, in terms of geographic reality, has 6. The provisions of the Convention on archipelagic passage
expressed agreement with this interpretation of the archipelagic con cept. So through sea lanes do not nullify or impair the sovereignty of the
it was that in 1957, the Indonesian Government issued the Djuanda Philippines as an archipelagic State over the sea lanes and do not deprive
Declaration, therein stating: it of authority to enact legislation to protect its sovereignty,
independence and security;
 ConstiRev: Session 1- Nature and Concept, Preamble, Article I | 15

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]
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])