INTERNATIONALIZATION OF PHILIPPINE TERRITORY: THE QUESTION OF BOUNDARIES By MERLIN M. MAGALLONA I. II. III. A General Vie !" P#ili$$ine Terri%!

ry in In%erna%i!nal La B!&n'arie(: Le)al Li*i%( an' F&n+%i!n B!&n'arie( !" P#ili$$ine Ar+#i$ela)! in %#e E,er+i(e !" U.S. S!-erei)n%y S%a%e#!!' an' %#e .!n(%i%&%i!nali/a%i!n !"

IV. P#ili$$ine B!&n'arie( V. VI. VII.

In%erna%i!nal Re+!)ni%i!n !" P#ili$$ine Terri%!ry an' I%( B!&n'ary Deli*i%a%i!n In%erna%i!nali/a%i!n !" P#ili$$ine Terri%!ry: I*$a+% !" %#e UN .!n-en%i!n !n %#e La !" %#e Sea .!n+l&'in) S%a%e*en%: Eni)*a( an' .ri(e(

INTERNATIONALIZATION OF PHILIPPINE TERRITORY: THE QUESTION OF BOUNDARIES By Merlin M. Ma)all!na I. A GENERAL VIE0 OF PHILIPPINE TERRITORY IN INTERNATIONAL LA0 The formation of the Philippine statehood under general international

1.

law entails the transformative process by which the Philippines Islands, together with it population and government in its revolutionary stage, at the juncture of the 19th and 2
th

centuries, assumed independent status about fifty

years later. Ta!ing the legal framewor! of the "ontevideo #onvention of the mid$twentieth century as the basis, the elements of state formation in customary international law are formulated as follows%
The &tate as a person of international law should possess the following 'ualifications% (a) a permanent population* (b) a defined territory* (c) government* and (d) capacity to enter into relations with other &tates. 1

Independence of the state+s government is a central criterion of statehood.2 Its territory, together with the population, was anne,ed by the &panish #rown under the 1-th century international law of .#hristian nations/. The elements towards the formation of the Philippine statehood were spread through centuries, the gestation process mar!ed by the revolutionary war of

the 0ilipino nation and by the treaty of cession between two major powers, and finally arriving at the grant of independence under general international law of the fourth decade of the 2
th

century.

2.

It is the cession of the Philippine Islands under the treaty of

peace between the 1nited &tates and &pain, ending the &panish$2merican 3ar, that provides some ground for evaluating the status of Philippine territory. 3ith respect to the Philippine Islands, the Treaty of Paris of 1 4ecember 1595 reads in 2rticle III%
&pain cedes to the 1nited &tates the archipelago !nown as the Philippine Islands, and comprehending the islands lying within the following lines%

which lines would represent the boundary lines of the Philippine 2rchipelago, together with the boundaries set forth in the treaty between the 1nited &tates and &pain on 6 7ovember 19 and the treaty between the

1nited &tates and 8reat 9ritain on 2 :anuary 19; .

3ithin the same lines, the Treaty sets forth the technical definition of the territorial boundaries of the Philippine 2rchipelago, as follows%
2 line running from west to east along or near the twentieth parallel of north latitude, and through the middle of the navigable channel of 9achi, from the one hundred and eighteenth (115th) to the one hundred ;

and twenty seventh (126th) degree meridian of longitude east of 8reenwich, thence along the one hundred and twenty$seventh (126 th) degree meridian of longitude east of 8reenwich to the parallel of four degrees and forty five minutes (<=<>+) north latitude, thence along the parallel of four degrees and forty five minutes (<=<>+) north latitude to its intersection with the meridian of longitude one hundred and nineteen degrees and thirty five minutes (119=;>+) east of 8reenwich, thence along the meridian of longitude one hundred and nineteen degrees and thirty five minutes (119=;>+) east of 8reenwich to the parallel of latitude seven degrees and forty (6=< +) north, thence along the parallel of latitude seven degrees and forty minutes (6=< +) north to its intersection with the one hundred and si,teenth (11-th) degree meridian of longitude east of 8reenwich, thence by a direct line to the intersection of the tenth (1 th) degree parallel of north latitude with the one hundred and eighteenth (115th) degree meridian of longitude east of 8reenwich, and thence along the one hundred and eighteenth (115th) degree meridian east of 8reenwich to the point of beginning.

The Philippine Islands is characteri?ed as an archipelago and thus is .essentially a body of water studded with islands/.; In addition, .by

comprehending the islands/, 2rticle III therefore contemplates one whole territorial unit consisting of both islands and waters that later comprised a state in one geographic and juridical unity.

9y technical definition, 2rticle III of the Treaty of Paris as operative international law identifies the territorial limits of the Philippines within which the 1nited &tates e,ercised sovereignty and jurisdiction as confirmed by &pain* and within which the Philippines as a sovereign &tate was later to succeed by the title of sovereignty upon recognition by the rest of the international community.
<

;.

The ac'uisition of Philippine Islands by the 1nited &tates from

&pain by cession may be surveyed from the perspective of general international law, beginning with the legality of war by which the Philippine Islands was ceded. 2t the time, a &tate may resort to war against any other state .without violating international law/<* rather, in the settlement of international disputes war was a normal e,pression of state sovereignty. 2s in the case of the belligerent states in the &panish$2merican 3ar, the state of war was terminated by the Treaty of Paris. It is a treaty of peace that went beyond the termination of the state of war* it dealt with the ac'uisition of territories the validity of which is in accord with general international law at the time.

<.

2s in the case of the Philippine Islands, the sphere of

sovereignty of the 1ntied &tates to which the 2rchipelago was ceded is determined by the Treaty of Paris as a source of law* in particular, the e,clusive effectiveness of the sovereign authority of the 1nited &tates is defined by the boundaries in the treaty of cession by which legal title was ac'uired against &pain as the ceding state. 2s affirmed by @elsen,

>

In case a state confers upon another the right to e,ercise permanently all functions of a &tate within a part of the former+s territory, including the right to transfer this right to others, we spea! of cession.>

>.

It is to be assumed that the territory ceded by &pain under the

Treaty of Paris was by the principle of effectiveness in general international law, subject to the e,ercise of its sovereignty and jurisdiction within the delimitation of the boundaries of the Philippine Archipelago, as established in Article III of the said treaty.

2t the time, general international law had no provision governing archipelagos* hence, in supremacy was the particular international law constituted in the treaty between states bound by the norm of pacta sunt servanda, such as the Treaty of Paris of 1 4ecember 1595.

-.

9y the treaty of cession, the rights and obligations of the 1nited

&tates inherent in the ac'uisition of territory of the Philippine 2rchipelago are directly derived from the binding character of the said treaty under general international law and not by succession from &pain.

II.

BOUNDARIES: LEGAL STATUS AND FUN.TION The term .boundary/ in international law has been defined as .a line

which determines the limit of the territorial sphere of jurisdiction of &tates or other entities having an international status/. - 9oundaries are described as .permanent lines dividing sphere of de jure jurisdiction./ They are

.imaginary lines on the surface of the earth which separate the land or maritime territory A of one &tate from that of another./6 The Philippines, together with the boundaries forming part of its territory, derives its international status from the fact and the law that it was the object and purpose of the treaty as a source of law. The validity of the Treaty of Paris is beyond 'uestion in establishing the rights and duties of the two great powers at the time, gaining the general ac'uiescence of the international community in the span of more than a century. Bther than by treaty or other consensual arrangement, there appears to be no general norm of international law governing the determination of boundaries. The cession of the Philippines by the Treaty of Paris with respect to the determination of boundaries under its 2rticle III was apparently left to the inter se relations of the 1nited &tates and &pain, as dictated by the results of the &panish$2merican 3ar. 3hile there appears to be no duty under international law of the 19th century prescribing as to how boundaries

were to be determined in the relevant circumstances, reasonably, there arises the presumption that &pain+s cession of the Philippine Islands was on the basis of the scope of its territorial sovereignty at the time, as delimited in 2rticle III of the Treaty of Paris and as supplemented by the &pain$1nited &tates Treaty of 6 7ovember 19 .

2s the outer limit of territorial sovereignty, the boundaries serve to maintain the consistency and stability of the &tate+s territory as an element of statehood. 2s delimited by its boundaries the &tate+s jurisdiction is

applied with effectiveness and for the protection of all inhabitants, both nationals and aliens. 2nd thus the boundaries of the Philippines as defined by 2rticle III of the Treaty of Paris are interconnected with 2rticle IC which allows &panish subjects who retained allegiance to the #rown of &pain to remain in the Philippine Islands with all rights recogni?ed under the Treaty subject to the jurisdiction in the change of sovereignty* under 2rticle CI of the Treaty they .shall be subject in matters civil as well as criminal/ to the jurisdiction of the new sovereign. In particular the waters of the Philippine 2rchipelago within the definition of 2rticle III of the Treaty appears to be integral to maritime jurisdiction such as that involved in 2rticle ID of the Treaty, by which the

1nited &tates .admits &panish ships and merchandise to the ports of the Philippine Islands on the same terms as ships and merchandise of the 1nited &tates/ for ten years from the date of the ratification of the Treaty. It deserves notice that of all territories ceded or relin'uished by &pain to the 1nited &tates under the Treaty of Paris, only the Philippine Islands appears to be re'uiring technical description in the manner provided by 2rticle III of the Treaty.

III.

BOUNDARIES OF PHILIPPINE AR.HIPELAGO IN THE PRA.TI.E OF U.S. SOVEREIGNTY The territorial sovereignty of the 1nited &tates under the Treaty of

Paris was internali?ed in the :ones Eaw, enacted by the 1.&. #ongress as the Philippine 2utonomy 2ct of 191-. The enabling clause of this 2ct reads%
9e enacted by the &enate and Fouse of Gepresentatives of the 1nited &tates in #ongress assembled, That the provisions of this 2ct and the name .The Philippines/ shall apply to and include the Philippine Islands ceded to the 1ntied &tates 8overnment by the treaty of peace concluded between the 1nited &tates and &pain on the eleventh day of 2pril, eighteen hundred and nineteen$nine, the boundaries of which are set forth in Article III of said treaty , together with those islands embraced in the treaty between &pain and the 1nited &tates concluded at 3ashington on the seventh of day of 7ovember, nineteen hundred.

0urther, the 1nited &tates #ongress enacted into law the Tydings$"c$ 4uffie 2ct providing for .complete independence/ of the Philippine Islands, the adoption of its #onstitution as well as the 8overnment of the
9

#ommonwealth of the Philippines Islands, .which shall exercise jurisdiction over all territory ceded to the United States by the treaty of peace concluded between the United States and Spain on the !th day of "ecember #$#, the boundaries of which are set forth in article III of said treaty , together with those islands embraced in the treaty between &pain and the 1nited &tates concluded at 3ashington on the 6th day of 7ovember 19 A./5

2n essential feature of the Tydings$"c4uffie 2ct is the succession clause in &ection >. This provides%
2ll the property and rights which may have been ac'uired in the Philippine Islands by the 1nited &tates under the treaties mentioned in the first section of this 2ct, A are hereby granted to the government of the %ommonwealth of the Philippine Islands when constituted.9

The succession contemplates in the first place rights pertaining to the principle of sovereignty, the application of which is circumscribed by the territorial boundaries. It may be recalled that prior to the :ones Eaw, Public Eaw 7o. 2;> H or the Philippine 9ill of 19 2 H was enacted by the 1.&. #ongress providing for the creation of the Philippine #ommission to e,ercise the powers of government, .to be administered for the benefit of the inhabitants thereof/. The scope of those powers comprehends those within &ection 12%

.I2Jll the property and rights which may have been ac'uired in the Philippine Islands by the 1nited &tates under the treaty of peace with &pain, signed 4ecember tenth, eighteen hundred and ninety$eighteen hundred and ninety$eight./ This 2ct declares that those property and rights are .hereby placed under the control of the government of said islands./ The totality of rights thus contemplates the determination by boundaries of the sphere of jurisdiction. In the 2dministrative #ode of 191- (2ct 7o. 2->6) and as revised by the 2dministrative #ode of 1916 (2ct 7o. 2611), the provisions on sovereignty are in terms of the .distribution of powers of government/ within the territorial boundaries as spelled out in the aforesaid treaties. &ection 1- of the Gevised 2dministrative #ode of 1916 states%
&erritorial jurisdiction and distribution of powers of Philippine 'overnment. K The territory over which the 8overnment of the Philippine Islands e,ercises jurisdiction consists of the entire Philippine Archipelago and is comprised in the limits defined by treaties between the United States and Spain respectively signed in the #ity of Paris on the tenth day of 4ecember, eighteen hundred and ninety$eight and in the #ity of 3ashington on the seventh day of 7ovember nineteen hundred.1

In 19;2, the Philippine #ommission enacted 2ct 7o. <

; .to amend

and compile the laws relating to fish and other a'uatic resources of the Philippine Islands/. It occasioned the definition of .Philippine waters or

11

territorial waters of the Philippines/* section - of the 2ct construes this to mean
all waters pertaining to the Philippine Archipelago as defined in the treaties between the 1nited &tates and &pain, dated respectively the tenth of 4ecember, eighteen hundred and ninety$eight, and the seventh of 7ovember, nineteen hundred.11

The clause .IaJll waters pertaining to the Philippine 2rchipelago as defined in the IsaidJ treaties/ includes the following% 1. 2ll waters forming part of the .archipelago !nown as the Philippine Islands. 2. 2ll waters within the line set forth in 2rticle III of the Treaty of Paris. ;. 2ll waters within the jurisdiction of the islands relin'uished by &pain to the 1nited &tates under the treaty concluded on 7ovember 6, 19 at 3ashington. <. 2ll waters within the boundaries drawn by the treaty concluded by the 1nited &tates and 8reat 9ritain on :anuary 2, 19; , between the Philippine 2rchipelago and the &tate of 7orth 9orneo. The foregoing considerations should dispel the objection of the

1nited &tates 8overnment that the limits set by the Treaty of Paris are boundary lines. It e,pressed the view that they constitute only a delimitation

12

of geographical area within which the land area belongs to the Philippines. 12 In a protest to the 4eclaration which the Philippine 4elegation made when it signed and ratified the 17#EB&, the 1nited &tates stated that neither the treaties nor practice .has conferred upon the 1nited &tates, nor upon the Gepublic of the Philippines as successor to the 1nited &tates, greater rights in the waters surrounding the Philippine Islands than are otherwise recogni?ed in customary international law./1; IV. STATEHOOD AND THE .ONSTITUTIONALIZATION OF BOUNDARIES The Philippines as a &tate is a territorial unit in the international legal system* its sovereignty is circumscribed by boundaries in which it possesses .the e,clusive right to display the activities of a &tate/. 1< The "ontevideo #onvention on the Gights and 4uties of &tates mentioned earlier, provides in 2rticle I that .as a person of international law/, the &tate among other 'ualifications, should possess .a defined territory/.

3hile possession of a defined territory is a basic criterion of statehood, the International #ourt of :ustice has e,pressed the view that there is .no rule that the land frontiers of a &tate must be fully delimited and

1;

defined./1> Luite apart from this situation, the case of the Philippines has the benefit of delimitation by boundaries of precise technical description. The real function of the boundaries as drawn in 2rticle III of the Treaty of Paris, together with the supplementary agreements, has been historically shown by application on the part of the 1nited &tates and by the Philippine 8overnment as successor$in$interest. This continuity in

succession assumed some 'ualitative change when towards its independence the Philippines achieved the constitutionali?ation of the boundaries set forth in the international agreements. It deserves emphasis that this fundamental law was approved by the President of the 1nited &tates, pursuant to the Tydings$"c4uffie 2ct. 2s transformed into &ection 1, 2rticle I of the 19;> #onstitution, the definition of territory spelled out in the said treaties reads%
The Philippines comprises all the territory ceded to the 1nited &tates by the Treaty of Paris concluded between the 1nited &tates and &pain on the tenth day of 4ecember, eighteen hundred and ninety$eight, the limits of which are set forth in Article III of the said treaty, together with all the island in the treaty concluded at 3ashington between the 1nited &tates and &pain on the seventh day of 7ovember, nineteen hundred, and the treaty concluded between the 1nited &tates and 8reat 9ritain on the second day of :anuary, nineteen hundred and thirty, and all territory over which he present 8overnment of the Philippine Islands e,ercises jurisdiction.

2s an element of statehood, territory as defined primarily in 2rticle III of the Treaty of Paris thus assumed the character of a constitutional
1<

principle, recogni?ing the roots of title to that territory in the international law of treaties. In this sense, the .defined territory/ of statehood maintains continuity through changes in the fundamental law of the Philippines as an independent &tate.

Bf paramount importance in the nature of Philippine territory is the geographical fact that it is an archipelago, combined with jurisdictional competence within the sphere of its boundaries. Gepresented in maps by .International Treaty Eimits/ (ITE) enclosing the Philippine 2rchipelago, the boundaries appear as the outer limit of territorial sovereignty, the elimination of which, as e,plained below, destroys the character of the Philippines as a unity of land and water in the archipelago, as a result of the internationali?ation of its waters .around, between, and connecting the islands of the archipelago/, which the present #onstitution e,pressly characteri?es as internal waters*.1The vital center of the Philippine

2rchipelago as a &tate lies in the nature of these internal waters as integral part of its territorial sovereignty in the inter$connecting islands.

The Philippine &tate as an archipelago comprised in the 19;> #onstitution has maintained the same basic constituent geographic and

1>

juridical features as e,isting at the time of cession, as affirmed by the long established practice of sovereignty and jurisdiction. The scope of Philippine territory as a &tate is formally legislated in Gepublic 2ct 7o. ; <-, the 9aseline Eaw of 19-1 as amended by Gepublic 2ct 7o. ><<-, in its preambular paragraphs, as follows%
3hereas, the #onstitution of the Philippines describes the national territory as comprising all the territory ceded to the 1nited &tates by the Treaty of Paris concluded between the 1nited &tates and &pain on 4ecember 1 , 1595, the limits of which are set forth in 2rticle III of said treaty, together with all the islands embraced in the treaty concluded at 3ashington, between the 1nited &tates and &pain on 7ovember 6, 19 and in the treaty concluded between the 1nited &tates and 8reat 9ritain on :anuary 2, 19; , and all the territory over which the 8overnment of the Philippine Islands e,ercised jurisdiction at the time of the adoption of the #onstitution* 3hereas, all the waters within the limits set forth in the above( mentioned treaties have always been regarded as part of the territory of the Philippines Islands) * 3hereas, all the waters around, between and connecting the various islands of the Philippine archipelago, irrespective of their width or dimension, have always been considered as necessary appurtenances of the land territory, forming part of the inland or internal waters of the Philippines) # 3hereas, all the waters beyond the outermost islands of the archipelago but within the limits of the boundaries set forth in the abovementioned treaties comprise the territorial sea of the Philippines) $ 3hereas, the baselines from which the territorial sea of the Philippines is determined consist of straight lines joining appropriate points of the outermost islands of the archipelago* IA.J

The foregoing te,t is of vital importance for the following reasons%

1-

(1) It provides the definition of Philippine territory as contained in the 19;> #onstitution and in the pertinent treaties as source of international law. (2) It is a synthesis of the dimension of Philippine territory as

communicated to the 1nited 7ations and to the international community by the Philippine 8overnment twice in formal note verbale. (;) It was initiated by the Philippine 4elegation to the &econd 17 #onference on the Eaw of the &ea of 19- as a protective measure vis$M$vis the trends in the conference proceedings that my lead to adoption of doctrines inimical to the established definition of Philippine territory. (<) It embodies the position of the Philippine 4elegation throughout the proceedings of the Third 17 #onference of the &ea that adopted the 17#EB&, in particular the affirmation of sovereignty over land area as e,tended to .all the waters around, between, and connecting the islands of the archipelago/H the principle that precludes the introduction of .archipelagic waters/.

V.

In%erna%i!nal Re+!)ni%i!n !" P#ili$$ine Terri%!ry an' I%( B!&n'ary Deli*i%a%i!n( 2t the time the treaties concerning the Philippine 2rchipelago were

concluded, no objective standards e,isted under international law governing

16

archipelagos, particularly mid$ocean archipelagos in statehood. Indeed not until the 0irst 17 #onference on the Eaw of the &ea in 19>5 did the legal status of archipelagos came into diplomatic deliberations. 2nd not until the adoption of the 17 #onvention on the Eaw of the &ea in 1952 (17#EB&) was the international law of the archipelagic states formally constituted. The .International Treaty Eimits/ of the Philippine 2rchipelago was left to be determined, as it was, to the relations of the &tate Parties primarily of the Treaty of Paris, with the recognition of the international community* the unity of its land areas and their connecting waters was integral to its internal sovereignty in statehood as thus established.

2t the time of the three 17 conferences on the law of the sea, the .defined territory/ of the Philippines as an independent state was already well$established.

Bn the day its independence was proclaimed on :uly <, 19<-, the 1nited &tates concluded the Treaty of 8eneral Gelations with the new republic in which it is provided in 2rticle DII that
The Gepublic of the Philippines agrees to assume all continuing obligations assumed by the 1nited &tates of 2merica under the Treaty of Paris between the 1nited &tates of 2merica and &pain concluded at Paris on the 1 th day of 4ecember 1595, by which the Philippine Islands were

15

ceded to 1nited &tates of 2merica, and under the Treaty between the 1nited &tates of 2merica concluded at 3ashington on the 6th day of 7ovember 19 .

Bf special significance to the scope of territorial sovereignty under this succession clause are the obligations arising from the aforementioned 2rticle III of the Treaty of Paris, as affirmed by practice in terms of acts of jurisdiction.

Inevitably, when the 1nited &tates invited the 8overnments with which it had diplomatic relations to .recogni?e the Gepublic of the Philippines as a member of the family of nations/, it involved the recognition of its territorial boundaries as set forth in treaties as a source of international law. This invitation is set forth in 2rticle II of the Provisional 2greement between the 1nited &tates of 2merica and the Gepublic of the Philippines #oncerning 0riendly Gelations and 4iplomatic and #onsular Gelations, signed at "anila, :uly <, 19<-. This provision reads%
The 8overnment of the 1nited &tates of 2merica will notify the 8overnments with which it has diplomatic relations of the independence of the Gepublic of the Philippines and will invite these 8overnments to recogni?e the Gepublic of the Philippines as a member of the family of nations.

#ommunicated to the 17 &ecretary$8eneral in a formal note verbale of 2 :anuary 19>-, was the response of the Permanent Gepresentative of the
19

Philippines to the 1nited 7ations to the report of the International Eaw #ommission on its draft articles on the high seas and on the territorial sea. 2mong the !ey elements of the territory emphasi?ed in the note verbale is the character of the waters around, between and connecting the islands of the Philippine 2rchipelago%
I1J 2ll waters around, between and connecting different islands belonging to the Philippine 2rchipelago, irrespective of their width or dimensions, are necessary appurtenances of its land territory, forming an integral part of the national or inland waters subject to the e,clusive sovereignty of the Philippines.IAJ I2J 2ll other water areas embraced within the lines described in the Treaty of Paris of 1 4ecember 1595, the Treaty concluded at 3ashington, 4.#., between the 1nited &tates and &pain on 6 7ovember 19 , the 2greement between the 1nited &tates and the 1nited @ingdom of 2 :anuary 19; .IAJ

The proceedings on the breadth of the territorial sea in the 19- 17 Eaw of the &ea #onference elicited 'uestions as to the peculiarities of the legal regime of the waters within the territorial boundaries of the Philippine 2rchipelago. In response to these 'uestions, the Philippine 4elegation held on to the following position%
I. . . .J The title of Philippines to a wider e,tent than twelve miles of territorial sea, therefore, has both a legal and historic basis. &uch title cannot and should not be affected adversely by any new rule on the breadth of territorial sea that may be adopted in this conference.I. . . .J N N N

The territorial sea of the Philippines, A over which my

country e,ercises sovereignty and jurisdiction by virtue of a legal and historic title, is therefore, comprised of all the waters beyond the 2

outermost islands of the archipelago but within the boundaries set forth in the Treaty of Paris. The case of the Philippines is thus sui generis, and cannot be covered by a general rule that may not be formulated by the breadth of the territorial sea. It is and will remain an e,ception, and, it is our hope that this conference can loo! with sympathetic consideration towards embodying a saving clause in any rule we may adopt on the breadth of the territorial sea, which would e,pressly recogni?e e,isting established rights which would include that of my country. In view of the uni'ue position of the Philippines, we have no direct interest in the breadth of the territorial sea which may be finally decided upon in this conference. I. . .J

The .legal and historic title/ communicated and affirmed by the Philippine 8overnment in the foregoing statements primarily refer to the treaties as sources of international law governing the Philippine 2rchipelago* they define the rights and obligations of the &tates parties of those treaties, together with their binding status on the international community at the time. The legal regime created by this treaties has been internali?ed into the constitutional system of the Philippine &tate through the 19;> #onstitution and is perpetuated through charges in its fundamental law. The survey presented above in Part I on the .8eneral Diew of Philippine Territory in International Eaw/ substantiates the legal and historic title creative of territorial sovereignty, the ac'uisition and possession of which not contrary to general norms of international law have become an integral element of Philippine statehood.

21

VI.

INTERNATIONALIZATION OF PHILIPPINE TERRITORY: IMPA.T OF THE UN .ONVENTION ON THE LA0 OF THE SEA 1UN.LOS2 0or purposes of the present discussion, by the term

.internationali?ation/ is meant the conditions of Philippine territory by which the international community of &tates as a whole, in particular the &tate Parties to the 17#EB&, have ac'uired rights in Philippine territory. 2nd it becomes a matter of international obligation on the part of the Philippines as a &tate Party to the 17#EB&, to comply with the binding force of these underta!ings.

Internationali?ation of Philippine territory means that what the #onstitution describes as .7ational Territory/ has become the object of the rights of every &tate Party or of their nationals, e,ercisable by them without the re'uirement of e,press consent or prior authori?ation on the part of the Philippine government in every instance.

3ithin the 17#EB& framewor!, the most disastrous terms of internationali?ation that impact on Philippine territory consist of the rules governing 2rchipelagic &tates in Part ID of the 17#EB&. These special rules have the effect of e,cluding the Philippines as an archipelagic &tate
22

from the application of the fundamental principle in general international law codified in 2rticle 2 of the 17#EB&, which reads%
The sovereignty of a coastal &tate e,tends beyond its land territory and internal waters and, and in case of archipelagic &tate, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea.2

This provision means that in general coastal &tates have sovereignty over their land territory and internal waters, which sovereignty e,tends to other areas. This general norm, however, cannot apply to the Philippines as an archipelagic state because the category of internal waters mentioned in the aforesaid provision refer to waters landward of the normal or straight baseline as established in 2rticles 6 or 5 of the 17#EB&. The Philippines does not possess internal waters of that category* what it has landward of its archipelagic baseline under the 17#EB& are archipelagic waters, which are subject to the right of innocent passage by ships of all &tates. The so$ called internal waters of the Philippines under the 17#EB& are those referred to in 2rticle > , consisting of waters in mouth of rivers (in 2rticle 9), in bays (in 2rticle 1 ) and in harbor wor!s in (2rticle 11).

The

special

rules

consigning

the

Philippine

territory

to

internationali?ation as an archipelagic state spells the diminution or derogation of territorial sovereignty in the impact of archipelagic waters* it
2;

has the effect of brea!ing up the unitary character of the Philippine statehood as an archipelago, which is consolidated by a continuum of land and waters in sovereignty. This is the core element in the territory of the Philippine &tate as established by the #onstitution when it ordains in 2rticle I that .ItJhe 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,/ and therefore these waters are integral part of territorial sovereignty. The same premise underlies the general norm reflected in 2rticle 2 of the 17#EB&, mentioned above. 2ll throughout the proceedings of the Third 17 #onference on the Eaw of the &ea which adopted the 17#EB&, the Philippine 4elegation consistently adhered to the same principled position H the position written into the premises of the old 9aseline Eaw of Gepublic 2ct 7o. ; <-, thus%
3hereas, all the waters around, between and connecting the various islands of the Philippine archipelago, irrespective of their width or dimension, have always been considered as necessary appurtenances of the land territory forming part of the inland or internal waters of the Philippines* IA.J

The internationali?ation of the Philippine territory through the 17#EB& has the effect of eliminating the legal status of the territorial boundaries of the Philippines as established by the Treaty of Paris of 1 4ecember 1595, together with two related agreements mentioned above.

2<

The sovereign rights of the Philippines as successor in interest to these treaties have lost legal status. The outer limit of the Philippine &tate mar!ed by International Treaty Eimits (ITE) has lost its legal function in defining the dimension of territorial sovereignty, resulting in its collapse from the ITE to the outer limit of the territorial sea not e,ceeding 12 nautical miles from the baseline, as the outer limit of territorial sovereignty under the 17#EB&.

In%ernal 0a%er( &n'er %#e .!n(%i%&%i!n 2s characteri?ed by the #onstitution, internal waters are those .waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions./ 1nder domestic law internal waters are not open to navigation of foreign ships without e,press consent of the Philippine government. 9efore the 17#EB&, in practice the Philippines re'uired

prior authori?ation of foreign ships for passage in its internal waters. In this regard, Philippine law is in conformity with general international law* internal waters are so closely lin!ed to the land domain that both are subject to the same legal regime.21 This close relationship is

determined by the vital interests of the territorial sovereign concerning the conditions of national and territorial integrity, of defense, of commerce and

2>

of industry.22 Internal waters are in law part of state territory such that other states may only use them .for navigation or for other purposes with the agreement of the territorial sovereign/.2; In other words, .2s a general rule, there is no right of navigation for foreign ships through internal waters/.2<

The 17#EB& does not recogni?e internal waters as !nown in the #onstitution in the case of the Philippines as an archipelagic state. Instead, it has replaced internal waters of such category with archipelagic waters. Dirtually of the same dimension as the #onstitutional internal waters, 2rticle <9 of the 17#EB& goes on to provide that archipelagic waters .e,tends to the waters enclosed by the archipelagic baselines A regardless of their depth or distance from the coast./

2fter declaring that the archipelagic state has sovereignty over archipelagic waters in 2rticles 2 and <9, 17#EB& stipulates the limitation to that sovereignty* it provides in 2rticle <9(;) that .This sovereignty is e,ercised subject to this Part/, which pertains in particular to 2rticle >2 in providing that .ships of all &tates enjoy the right of innocent passage through archipelagic waters./ In the case of the Philippines, this right of

2-

innocent passage is e,ercisable as a matter of objective right in the .waters around, between and connecting the islands of the archipelago/.

In this vast e,panse of waters characteri?ed by the #onstitution as internal waters, what categories of ships of all &tates are entitled to e,ercise the right of innocent passage under the 17#EB&O 8enerally, ships that may e,ercise the right of innocent passage in the territorial sea are entitled to such passage in the archipelagic waters. The following categories of foreign ships are so entitled% (1) 3arships, pursuant to 2rticles 29 and ; of the 17#EB&* (2) &ubmarines and other underwater vehicles, under 2rticle 2 * (;) &hips carrying nuclear materials or substances, under 2rticle 22(2)* (<) &hips carrying other inherently dangerous or no,ious materials or substances, under 2rticle 22(2)* (>) Tan!ers, under 2rticle 22(2)* (-) 7uclear$powered ships, under 2rticle 22(2)* and (6) Bther government ship operated for non$commercial purposes, under 2rticle ;1.

26

#onsidering that entitlement to navigation is e,ercisable without need of e,press permission or clearance, it is not easy to dispel the ris! of some environmental disasters, especially in the light of past e,periences.

Ba(eline( an' Ar+#i$ela)i+ 0a%er( 0or purposes of the present discussion, the 17#EB& identifies two categories of baselines, namely% (1) the normal baseline and the straight baseline provided

respectively in 2rticles 6 and 5 of the 17#EB&, which apply to all coastal &tates* and (2) the archipelagic baseline in 2rticle <6 of the 17#EB&, which specially applies only to archipelagic states, such as the Philippines. The distinction between these two categories of baselines lies in the legal status of waters enclosed by, or landward of , the baseline. 2s regards the normal or straight baseline, these waters are characteri?ed as internal waters. Thus, 2rticle 5 provides%
AIwJaters on the landward side of the baseline of the territorial sea form part of the internal waters of the &tate.

25

9ut with respect to archipelagic baseline, the waters landward or within the baseline are archipelagic waters. 2rticle <9 of the 17#EB& provides%
AITJhe waters enclosed by the archipelagic baselines IareJ described as archipelagic waters, regardless of their depth or distance from the coast.

Bn one hand, the status of internal waters in regard to coastal states in general is un'ualified as forming part of the sovereignty over land territory. P,pressing the general norm of international law, 2rticle 2(1) of the 17#EB& reads%
The sovereignty of a coastal &tate e,tends beyond its land territory and internal waters and, A to an adjacent belt of sea, described as territorial sea.

Bn the other hand, with respect to archipelagic states, while the 17#EB& describes archipelagic waters as area of sovereignty in 2rticles 2 and <9, this sovereignty is subject to 2rticle >2 which provides that AI&Jhips of all &tates enjoy the right of innocent passage through
archipelagic waters, in accordance with Part III, section ;.

Geference to Part III, section of the 17#EB&, pertains to innocent passage in the territorial sea.

29

2s a conse'uence, in the case of the Philippines as an archipelagic &tate, the right of innocent passage in the archipelagic waters is in continuity with the right of innocent passage in the territorial sea.

#oastal states under the general norm of international law have the benefit of sovereignty over their internal waters landward of the baseline, by prohibiting navigation by foreign ships of all states without e,press permission. 9ut by special rules governing archipelagic states, what is

defined as internal waters in general international law H and under its own #onstitution in the Philippine case H are subject to the right of innocent passage of .ships of all &tates/ under the 17#EB&. The only internal waters left to the Philippines under the 17#EB& are waters in mouths of rivers, in bays and in permanent harbor wor!s identified in respectively 2rticles 9, 1 and 11, pursuant to 2rticle > . Ri)#% !" Inn!+en% Pa((a)e 3hen the baseline under 2rticle 6 or 5 of the 17#EB&, reflecting general international law, is drawn across bodies of water, it becomes a dividing line between territorial sea subject to innocent passage of foreign ships, and internal waters landward of the baseline as un'ualified area of state sovereignty.
;

9ut with respect to the Philippines, as subject to special rules governing archipelagic states, the baseline ceases to be a demarcation line between territorial sea and waters landward of the Philippine archipelagic baseline, because the right of innocent passage may be e,ercised in continuity from the territorial sea into the archipelagic waters, both regimes being of the same character, as indicated in 2rticle >2 of the 17#EB& which provides that innocent passage in archipelagic waters is to be e,ercised in accordance with innocent passage in the territorial sea. 9eside this common character of innocent passage in both regimes, there are differences between them which are of crucial disadvantage to the Philippines as an archipelagic state. In 2rticle 15(2)(a), 17#EB& defines passage to be characteri?ed as innocent as meaning .navigation through the territorial sea for the purpose of A traversing that sea without entering internal waters or calling of a roadstead or port facility outside the internal waters./ 3ith respect to the Philippines, the right of innocent passage in the territorial sea has suffered a change adversed to the Philippines in its e,ercise* for the reason that the 'ualification .without entering internal waters/ 2rticle 15(2)(a) ceases to be prohibitive or becomes inapplicable in the absence of internal waters landward of the archipelagic baselines of the Philippines, internal waters having been replaced by archipelagic waters. In

;1

effect, in place of this prohibitive 'ualification there is installed the right of innocent passage in the archipelagic waters. Thus, that 'ualification has become meaningless.

In another respect, the right of innocent passage in the archipelagic waters as applied to the disadvantage of the Philippines differs from innocent passage in the territorial sea, as shown in reference to 2rticle 19(2) of the 17#EB&. &pelling out the meaning of .innocent passage/, it

enumerates activities of foreign ships which are .considered to be prejudicial to peace, good order or security of the coastal &tate./ 2mong these activities identified in 2rticle 19(2)(e) and (f) are .the launching, landing or ta!ing on board of any aircraft/ and .the launching, landing or ta!ing on board of any military device./

3hat is prejudicial to coastal states in general may be prove to a normal activity as regards the Philippines as an archipelagic state, when foreign warships e,ercise the archipelagic sea lane passage. 2s provided in 2rticle >; of the 17#EB&, this passage combines the right of navigation of foreign with the right of overflight of foreign aircraft. In particular, the passage of aircraft carrier through the Philippine archipelagic sea lane

;2

passage is li!ely to involve in normal operation the landing or ta!ing off of aircraft while in transit, or ta!ing on board a military device.

"oreover, the following acts considered to be prejudicial to peace or security of the coastal states/ under 2rticle 19(2) of the 17#EB& may be reduced to futility in the undetected passage of submarines in the archipelagic sea lanes in their submerged or normal mode, as allowed under >;(;) of the 17#EB&%
(b) any e,ercise or practice of weapons of any !ind* (c) any act aimed at collecting information to the prejudice of the defense or security of the coastal state* N N N (h) any act of willful pollution contrary to this #onvention* N N N

(j) the carrying out of research or survey activities (!) any act aimed at interfering with any system of communication or any other facilities or installations of the coastal &tate* A.

Ar+#i$ela)i+ Sea lane Pa((a)e 2rchipelagic sea lane passage under the 17#EB& combines the right of navigation of all foreign ships and the right of overflight of all foreign aircraft, as provided in 2rticle >; (1) and (2). It is an independent legal regime from, and is an addition to, the right of innocent passage in the

;;

territorial sea and in the archipelagic waters. 7o less then > nautical miles wide, archipelagic sea lanes and air routes, as 2rticle >;(<) of the 17#EB& prescribes, .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 through or over archipelagic waters./ Gestriction to territorial sovereignty may be more e,tensive by the designation of more than one archipelagic sea lanes and air routes. "oreover, 17#EB& does not set a limit as to the !ind of ships or aircraft which can pass through the archipelagic sea lanes, implying that warships and military aircraft as well as nuclear$powered ships or those carrying nuclear or other inherently dangerous or no,ious substances. #ustomary international law does not allow overflight over the territorial sea nor over archipelagic or internal waters. #odifying general international law, 2rticle 1 of the #hicago #onvention on International #ivil 2viation mandates that .every &tate has complete and e,clusive In 2rticle ;, the

sovereignty over the airspace above its territory./

#onvention prohibits every &tate aircraft to fly over the territory of another &tate or land thereon .without authori?ation by special agreement or otherwise and in accordance with the terms thereon/.

;<

In instituting the archipelagic sea lane passage and overflight for archipelagic states, including the Philippines, 17#EB& sets aside these norms of general international law by providing the right of overflight across the territorial sea and archipelagic waters. 0oremost in the function of the archipelagic sea lane passage is the military$strategic interest. :udge &higeru Bda of the International #ourt of :ustice has summari?ed this rationale as follows%
AITJhe new regime on the passage through straits and archipelagic waters was introduced A in particular, to maintain uninterrupted navigation of warships H including submarines H and the free navigation of military aircraft A. The 1.&. 7avy would only accept the archipelagic concept on the condition that the undetected and uninterrupted passage of submarines would be guaranteed throughout archipelagic waters.2>

Bn overflight over archipelagic sea lanes, @wiat!ows!a e,plains that

The re'uirement that air routes must be above archipelagic sea lanes was dictated not by need of civil air navigation but by necessity to provide maneuvering possibilities for military aircraft while the naval forces of a particular fleet are passing through the sea lanes.2-

The military$security dimension of the archipelagic sea lane passage is 'ualitatively magnified because of nuclear$armed submarines and the undersea deployment or emplacement of nuclear$weapon deterrent systems. The strategic importance of this factor to the major military powers should drive home the awareness as to how the archipelagic sea lane passage could bring the Philippines to the brin! of disaster.

;>

The military$strategic motive power that propelled the archipelagic sea lanes passage into the mainstream of international law of the sea carries serious implications on the security and integrity of the national community. In conte,t, it is most pertinent to in'uire why the Philippines must pay such a heavy price in the interest of the major military powers, such as the 1nited &tates and #hina, which might be brought to a sharper military competition sooner than in the coming decade. Gecently, by the time that a bill

establishing the archipelagic sea lane was filed in #ongress, #hina announced the launching of its first aircraft carrier. 2s to submarines, an anomaly in the 17#EB& arises from the fact that in 2rticle 2 it re'uires submarines .in the territorial sea to navigate on the surface and to show their flag/, but in archipelagic sea lane they are allowed passage in their submerged state or .in the normal mode/ under 2rticle >;(;). 2nd thus @wiat!ows!a is of the view that archipelagic sea lane passage is necessary .to enable a submerged navigation of submarine and maneuvering of a military aircraft which are not permissible under the innocent passage regime./26 Earson even thin!s that the major naval powers may send the &&97s Inuclear ballistic missile submarinesJ or attac! submarines through archipelagic waters in their normal mode of

;-

operation./25 These security concerns may find justification in the 1nited 7ations study that
The sea has now become the operational environment of ballistic missile submarines each of which has been estimated to be carrying the e'uivalent of more e,plosive power than was used by all the combatants in the &econd 3orld 3ar.29

2 report of the 17 4epartment of 4isarmament 2ffairs says that .a great number of the I#9"s is sea$borne and more than 6, strategic

nuclear warheads are carried by submarines of A nuclear weapons status. ; 2nd yet with respect to passage through archipelagic sea lanes, 17#EB& does not re'uire prior authori?ation H or even just notification H for the passage of submarines or warships carrying nuclear weapons or other dangerous or no,ious cargoes. In a move described by the state media as

.unprecedented and necessary to show other countries #hina+s stri!ing capability as territorial tensions mount, Agence +rance Presse reported from 9eijing two wee!s ago that #hina had put its nuclear$powered submarine fleet on public display.;1 Bf urgent relevance is the analysis of #hurchill and Eowe as regards marine pollution from ships in their innocent passage through waters interconnecting the islands of the archipelagic state. according to them, The 17#EB&,

;6

A in its provisions on pollution gives the coastal &tate additional enforcement jurisdiction in respect of pollution over foreign vessels in its territorial sea A. This additional jurisdiction does not apply in archipelagic waters. The result, therefore, is that in its archipelagic waters an archipelagic &tate has less enforcement jurisdiction over foreign vessels in matters of pollution than a non$archipelagic &tate in its territorial sea A.;2

VII. .ON.LUDING STATEMENT: ENIGMAS AND .RISES S+#i/!$#reni+ P!(%&re !" %#e P#ili$$ine Dele)a%i!n Throughout the official proceedings of the Third 17 #onference on the Eaw of the &ea that adopted the 17#EB&, the Philippine 4elegation consistently emphasi?ed its position on .the dominion and sovereignty of the archipelagic state within the baselines, which were so drawn as to preserve the territorial integrity of the archipelago by the inseparable unity of the land and water./;;

Qet the 4elegation went on and signed the 17#EB& which contradicted H and in effect nullified H that position by its provision on archipelago waters. Eater, in the face of that contradiction, the 4elegation proceeded to have the 17#EB& ratified, which was done to e,press the consent of the Philippines to be bound by the 17#EB&.

;5

Pnigmatic is the fact that when it signed the 17#EB& on 1 4ecember 1952, the 4elegation submitted a 4eclaration which .manifests that in signing the 1952 1nited 7ations #onvention on the Eaw of the &ea it does so with the understandings embodied in this declaration./

2pparently the paragraph 1 of the 4eclaration intends to return to the effectivity of the #onstitution in defining internal waters and thus precludes the application of the 17#EB& provision on archipelagic waters. This

paragraph emphasi?es the position of the 4elegation on the sovereignty of the Philippines with respect to waters landward of the baselines. paragraph reads%
1. The signing of the #onvention by the 8overnment of the Gepublic of the Philippines shall not in any manner impair or prejudice the sovereign rights of the Gepublic of the Philippines under and arising from the #onstitution of the Philippines.

This

Paragraph 2 of the 4eclaration appears to be of the necessary implication that the entire Philippine territory, as presented in the foregoing discussion, is to be e,cluded from the application of the 17#EB& and to restore the regime of the Treaty of Paris as governing the definition of Philippine territory H certainly a heretical view of a 4elegation which had just signed the 17#EB&.

;9

This paragraph stipulates as follows%

2. &uch signing shall not in any manner affect the sovereign rights of the Gepublic of the Philippines as successor of the 1nited &tates of 2merica under and arising out of the Treaty of Paris between &pain and the 1nited &tates of 2merica of 4ecember 1 , 1595, and the Treaty of 3ashington between the 1nited &tates of 2merica and 8reat 9ritain of :anuary 2, 19; .

The 4eclaration in paragraph > prescribes that the 17#EB& shall not have the effect of amending Philippine laws, apparently with respect to territory. 17#EB& therefore is reduced to irrelevance as to the legal status of Philippine territory, in particular as concerning the changes contemplated under Part ID of the 17#EB& governing the Philippines as an archipelagic state. This paragraph provides in part%
The #onvention shall not be construed as amending in any manner any pertinent laws and Presidential 4ecrees or Proclamations of the Gepublic of the Philippines* A.

The Philippine 4elegation justifies this 4eclaration under 2rticle ;1 of the 17#EB& as a way of .harmoni?ation of its laws and regulations with the provisions of this #onvention/. This justification fails because, contrary to 2rticle ;1 , the 4eclaration .purportIsJ to e,clude or to modify the legal effect of the provisions of this #onvention in their application/ to the Philippines.

<

2 number of &tates Parties objected to the Philippine 4eclaration on the ground that it is in the nature of reservation, which 17#EB& e,pressly prohibits in 2rticle ; 9.

2.

3as the 4eclaration intended to prepare the way for the

concurrence of the 17#EB& by the 9atasang Pambansa, in anticipation of constitutional objections that may be raisedO

If that were so, the sense of the 4eclaration as addressed to the 9atasan for purposes of concurrence on the 17#EB& may be interpreted as an assurance to the 9atasan that the 17#EB& would not be inimical to the Philippines because (a) it would not impair the sovereign rights of the Philippines under the #onstitution* (b) it would not affect the territorial rights of the Philippines as derived from the Treaty of Paris and related treaties* and (c) it would not be amending laws apparently in regard to the defined territory of the Philippines.

<1

Fowever, all these underta!ings under the 4eclaration have no legal ground under the 17#EB& and the entire 4eclaration stands as a violation of the 17#EB&. In other words, the Philippine 4eclaration is not binding on any &tate Party of the 17#EB&. 3ith respect to the impact of the 17#EB& on Philippine territory, these underta!ings would prove to be false. 2t any rate, by Gesolution 7o. 121, the 9atasan e,pressed its concurrence in the 17#EB& on 22 0ebruary 195<. It reads%
Gesolved by the 9atasang Pambansa, To concur, as it hereby concurs, in the 1nited 7ations #onvention on the Eaw of the &ea entered into and signed by the Gepresentative of the Gepublic of the Philippines on 4ecember 1 , 1952 at "ontego 9ay, :amaica, with the understanding embodied in the "eclaration filed on behalf of the Gepublic of the Philippines by the head of the Philippine delegation when he signed the said #onvention, H copy of which is attached as ,annex A-../

3hile the 4eclaration has no legal standing in the international plane and is not binding in the relation between the Philippines and the other &tates Parties, in domestic law, having been made an integral part of Gesolution 7o. 121, as its 2nne,, it is an enactment of the 9atasang Pambansa within its constitutional authority. Its legal significance lies in its disclosure of the fuller legislative intent as to the limitations that will control the implementation or operation of the 17#EB& in Philippine jurisdiction.

<2

In this sense, the underta!ings set forth in the 4eclaration appear to be in the nature of conditions to concurrence. Thus, the 9atasan e,pressed its concurrence, subject to the underta!ings stipulated in the 4eclaration, as e,plained above. This would include the necessity of a continuing

surveillance as to the implementation of the 17#EB& in !eeping with the underta!ings re'uired by the 4eclaration. This interpretation raises the more basic 'uestion as to whether the #onstitution would accommodate a conditional concurrence. This line of reasoning finds a fundamental obstacle because the 4eclaration is based on the supremacy of the #onstitution and the laws over the 17#EB& and hence the 17#EB& shall not effect any change in the pertinent domestic law. Ta!en together, the underta!ings under the 4eclaration necessarily imply that it preclude the application of the 17#EB& in Philippine jurisdiction and sovereignty as defined under the #onstitution and the laws. Fence, conditional concurrence may mean no concurrence at all.

T#e Ne Ba(eline La The 7ew 9aseline Eaw in Gepublic 2ct 7o. 9>22 may prove to be a turning point in the territorial sovereignty of the Philippines.

<;

Parlier, it is e,plained that the scope of Philippine territorial sovereignty is written into the Bld 9aseline Eaw in Gepublic 2ct 7o. ; <as its preambular paragraphs. The status of these paragraphs remains a mystifying enigma. G2 9>22 provides in &ection 1 that it is an amendment to G2 ; <-, and &ection 5 reads as follows%
The provisions of Gepublic 2ct 7o. ; <-, as amended by Gepublic 2ct 7o. ><<-, and all other laws, decrees, e,ecutive orders, rules and issuances inconsistent with this 2ct are hereby amended or modified accordingly.

Fow does G2 9>22 affect the legal status of Philippine territory as defined in the preambular paragraphs of G2 ; <-. In particular, how does &ection 5 of the new law amend or modify, if at all, the comple, of territorial rights comprehended by the preamble of G2 ; <-, as follows% (a) those that are integral to the Treaty of Paris, together with the two supplementary agreements, which at time of the enactment of G2 ; <- in 19-1 were provided in the definition of 7ational Territory set forth in the $.0 %onstitution) (b) those pertaining to all the waters within the boundaries

established by these treaties* and (c) those rights pertaining to .all the waters around, between and connecting the various islands of the Philippine archipelago/.

<<

Te,tually, it is not clear whether G2 9>22 was enacted in implementation of the 17#EB&, e,cept that the manner by which it is entitled may suggest the intent to that effect. Thus%
2n 2ct to 2mend #ertain Provisions of Gepublic 2ct 7o. ; <-, as 2mended by Gepublic 2ct 7o. ><<-, to "efine the Archipelagic 1aseline of the Philippines and 0or Bther Purposes;>

The term .archipelagic baseline/ may have been derived from 2rticle <6 of the 17#EB&. This provides in part that .The archipelagic &tate may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago A./ 9ut it is the ponencia of the &upreme #ourt in 2agallona vs. 3rmita.4 which clearly indicates the decisive premise in our discussion that the 7ew 9aseline Eaw is the legislated implementation of the 17#EB&, or its application, in the case of the Philippines as an archipelagic state. The entire ponencia in fact is devoted to the constitutionality of G2 9>22 on the basis of the #ourt+s application of the pertinent provision of Part ID of the 17#EB& which are specially constituted to govern archipelagic states. Bn the basis of the foregoing premise in regard to the status of the 7ew 9aseline Eaw under the 17#EB& as applied to Philippine territory, the following implications are submitted%

<>

(a)

the 7ew 9aseline Eaw represents the entry point of the

Philippines into the special rules of the 17#EB& governing archipelagic states, signifying the status of the Philippines as an archipelagic state* (b) the application of the archipelagic baselines under 2rticle <6 of the 17#EB& implies necessarily the application of the other elements or features of the archipelagic state provided in Part ID of the 17#EB&, namely, the archipelagic waters and archipelagic sea lane passage* (c) as a conse'uence of the totali?ing coverage of the 17#EB&, the entire Philippine territory is reorgani?ed along the characteri?ation e,plained in our earlier discussion, including the elimination of its boundaries established by the Treaty of Paris and related international agreements.

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NOTES

<6

"ontevideo #onvention on Gights and 4uties of &tates (19;;), 2rticle I, 1-> Eeague of 7ations Treaty &eries 19. &ee Fans @elsen, Principles of International Eaw, 2nd ed., revised and edited by Gobert 3. Tuc!er, 19-6, p. ; 6% .Traditional doctrine distinguishes three elements+ of the state% its territory, its people, and its power e,ercised by an independent and effective government/. 2 :ames #rawford, The #reation of &tates in International Eaw, 1969, pp. <5$>2* @elsen, op. cit., p. ; 6. ; &ee Firan 3. :ayewardene, The Gegime if Islands in International Eaw, 1959, pp. 1 <$1 >. < &ee @elsen, op. cit., p. 29. > @elsen, op.cit., p. ;19. "ichael, .9oundaries/ in Gudolf E. 9indschedler (ed.) Pncyclopedia of Public International Eaw, Dol. 1 , 1956, p. 16. 6 Ibid., p. 15. 5 An Act to "eclare the Purpose of the People of the United States as to the +uture Political Status of the People of the Philippine Islands and to Provide a 2ore Autonomous 'overnment for those Islands. Pmphasis added. The treaty referred to is meant to be the Treaty of Paris of 1 4ecember 1595. 9 2rticle 1. Pmphasis added. 1 Pmphasis added. 11 Pmphasis added. 12 Pmphasis added. 1; < 3hiteman, 4igest of International Eaw 25;. 1< 2s 'uoted in @wiat!ows!a, .2n 2ssessment of 7ational Eegislation on 2rchipelagic 3aters/, 3orld 9ulletin, 2;,<>. 1> &ee Island of Palmas %ase, I GI22 529, 5;9 (1925). 1&ee 5orth Sea %ontinental Shelf %ases, I#: Geports, 19-9, pp. ;, ;2. 16 #onstitution (1956), 2rticle I. 15 Pmphasis added. 19 Pmphasis added. 2 Pmphasis added. 21 Pmphasis added. 22 &ee &he +isheries %ase, I#: Geports, 19>1, pp. <-, 1;;. 2; &ee the 7orth 2tlantic #oast 0isheries 29ritration #ase, vol. 11, pp. 1-6, 19-). 2< Ian 9rownlie, Principles of Public International Eaw, 1995, pp. 11-$116. 2> P.4. 9rown, The International Eaw of the &ea, vol. I, 199<, pp. ;5,< . 2.The Passage of 3arships Through &traights and 2rchipelagic 3aters/, in :.1. van 4y!e, et als., (eds.), International 7avigation% Goc!s and &hoals, pp. 1>>$1>6, 2- (1955). 26 9arbara @wiat!ows!a, .Pvaluation of &tate Eegislation on 2rchipelagic 3aters, - 3orld 9ulletin 22, 2; (199 ). Pmphasis added. 25 Ibid., pp. 22$2;.
1

4.E. Earson, .&ecurity Issues and the Eaw of the &ea% 2 8eneral 0ramewor!/, 1> Bcean 4ev. R Int+l Eaw, 99, 115 (195>). ; 17 4ept. of 4isarmament 2ffairs, The 7aval 2rms Gace, 195-, p. 1<. ;1 &ee F.3. :ayewardene, The Gegime of Islands in International Eaw, 199 , pp. 16 $161. ;2 .#hina fle,es muscle, shows submarine fleet,/ Philippine &tar, Bctober ; , 2 1;, p. 1. ;; G.G. #hurchill and 2.D. Eowe, The Eaw of the &ea, 195;, pp. 9-$96. ;< @wiat!ows!a, op.cit., supra, note 2<, p. ;6, citing 17#EB& official records in vol. II, paras. -1.2, -> and --. ;> Pmphasis added. ;8.G. 7o. 1561-6, 2ugust 15, 2 11.
29