soe of

\depth or distance from the coast

present state of jurisprudence considers the provisions in Article II as mere legislative guides,
which, absent enabling legislation, "do not embody judicially enforceable constitutional rights x x
x."49 Article II provisions serve as guides in formulating and interpreting implementing legislation, as
well as in interpreting executory

delineation is contrary to UNCLOS III, the international community will of course reject it and will
refuse to be bound by it.

UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui
generis maritime space – the exclusive economic zone – in waters previously part of the high seas.
UNCLOS III grants new rights to coastal States to exclusively exploit the resources found within this
zone up to 200 nautical miles.53 UNCLOS III, however, preserves the traditional freedom of
navigation of other States that attached to this zone beyond the territorial sea before UNCLOS III.

RA 9522 and the Philippines’ Maritime Zones

Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was not bound
to pass RA 9522.54 We have looked at the relevant provision of UNCLOS III55 and we find petitioners’
reading plausible. Nevertheless, the prerogative of choosing this option belongs to Congress, not to
this Court. Moreover, the luxury of choosing this option comes at a very steep price. Absent an
UNCLOS III compliant baselines law, an archipelagic State like the Philippines will find itself devoid
of internationally acceptable baselines from where the breadth of its maritime zones and continental
shelf is measured. This is recipe for a two-fronted disaster: first, it sends an open invitation to the
seafaring powers to freely enter and exploit the resources in the waters and submarine areas around
our archipelago; and second, it weakens the country’s case in any international dispute over
Philippine maritime space. These are consequences Congress wisely avoided.

The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and adjacent
areas, as embodied in RA 9522, allows an internationally-recognized delimitation of the breadth of
the Philippines’ maritime zones and continental shelf. RA 9522 is therefore a most vital step on the
part of the Philippines in safeguarding its maritime zones, consistent with the Constitution and our
national interest.

WHEREFORE, we DISMISS the petition.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice
 PRESBITERO J. VELASCO, JR. TERESITA J. LEONARDO-DE CASTRO
Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE C. MENDOZA

Associate Justice Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court.

RENATO C. CORONA
Chief Justice

Footnotes

1Entitled "An Act to Amend Certain Provisions of Republic Act No. 3046, as Amended by
Republic Act No. 5446, to Define the Archipelagic Baselines of the Philippines, and for Other
Purposes."

2 Entitled "An Act to Define the Baselines of the Territorial Sea of the Philippines."

3The third "Whereas Clause" of RA 3046 expresses the import of treating the Philippines as
an archipelagic State:

"WHEREAS, all the waters around, between, and connecting the various islands of
the Philippine archipelago, irrespective of their width or dimensions, have always
been considered as necessary appurtenances of the land territory, forming part of
the inland waters of the Philippines."
4One of the four conventions framed during the first United Nations Convention on the Law
of the Sea in Geneva, this treaty, excluding the Philippines, entered into force on 10
September 1964.

5 UNCLOS III entered into force on 16 November 1994.

6 The Philippines signed the treaty on 10 December 1982.

7 Article 47, paragraphs 1-3, provide:

1. An archipelagic State may draw straight archipelagic baselines joining the

outermost points of the outermost islands and drying reefs of the archipelago
provided that within such baselines are included the main islands and an area in
which the ratio of the area of the water to the area of the land, including atolls, is
between 1 to 1 and 9 to 1.

2. The length of such baselines shall not exceed 100 nautical miles, except that up to
3 per cent of the total number of baselines enclosing any archipelago may exceed
that length, up to a maximum length of 125 nautical miles.

3. The drawing of such baselines shall not depart to any appreciable extent from the
general configuration of the archipelago. (Emphasis supplied)

xxxx

8 UNCLOS III entered into force on 16 November 1994. The deadline for the filing of
application is mandated in Article 4, Annex II: "Where a coastal State intends to establish, in
accordance with article 76, the outer limits of its continental shelf beyond 200 nautical miles,
it shall submit particulars of such limits to the Commission along with supporting scientific
and technical data as soon as possible but in any case within 10 years of the entry into force
of this Convention for that State. The coastal State shall at the same time give the names of
any Commission members who have provided it with scientific and technical advice."
(Underscoring supplied)

In a subsequent meeting, the States parties agreed that for States which became
bound by the treaty before 13 May 1999 (such as the Philippines) the ten-year period
will be counted from that date. Thus, RA 9522, which took effect on 27 March 2009,
barely met the deadline.

9 Rollo, p. 34.

10 Which provides: "The national territory comprises the Philippine archipelago, with all the
islands and waters embraced therein, and all other territories over which the Philippines has
sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its
territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The
waters around, between, and connecting the islands of the archipelago, regardless of their
breadth and dimensions, form part of the internal waters of the Philippines."

11Entered into between the Unites States and Spain on 10 December 1898 following the
conclusion of the Spanish-American War. Under the terms of the treaty, Spain ceded to the
United States "the archipelago known as the Philippine Islands" lying within its technical
description.

12 The Treaty of Washington, between Spain and the United States (7 November 1900),
transferring to the US the islands of Cagayan, Sulu, and Sibutu and the US-Great Britain
Convention (2 January 1930) demarcating boundary lines between the Philippines and North
Borneo.

13 Article II, Section 7, Section 8, and Section 16.

Allegedly in violation of Article XII, Section 2, paragraph 2 and Article XIII, Section 7 of the
14

Constitution.

15
Kilosbayan, Inc. v. Morato, 320 Phil. 171, 186 (1995).

Pascual v. Secretary of Public Works, 110 Phil. 331 (1960); Sanidad v. COMELEC, 165
16

Phil. 303 (1976).

17Francisco, Jr. v. House of Representatives, 460 Phil. 830, 899 (2003) citing Kilosbayan,
Inc. v. Guingona, Jr., G.R. No. 113375, 5 May 1994, 232 SCRA 110, 155-156 (1995)
(Feliciano, J., concurring). The two other factors are: "the character of funds or assets
involved in the controversy and a clear disregard of constitutional or statutory prohibition." Id.

18 . Rollo, pp. 144-147.

19 See e.g. Aquino III v. COMELEC, G.R. No. 189793, 7 April 2010, 617 SCRA 623
(dismissing a petition for certiorari and prohibition assailing the constitutionality of Republic
Act No. 9716, not for the impropriety of remedy but for lack of merit); Aldaba v. COMELEC,
G.R. No. 188078, 25 January 2010, 611 SCRA 137 (issuing the writ of prohibition to declare
unconstitutional Republic Act No. 9591); Macalintal v. COMELEC, 453 Phil. 586 (2003)
(issuing the writs of certiorari and prohibition declaring unconstitutional portions of Republic
Act No. 9189).

See e.g. Neri v. Senate Committee on Accountability of Public Officers and Investigations,
20

G.R. No. 180643, 25 March 2008, 549 SCRA 77 (granting a writ of certiorari against the
Philippine Senate and nullifying the Senate contempt order issued against petitioner).

21 Rollo, p. 31.

22Respondents state in their Comment that petitioners’ theory "has not been accepted or
recognized by either the United States or Spain," the parties to the Treaty of Paris.
Respondents add that "no State is known to have supported this proposition." Rollo, p. 179.

23 UNCLOS III belongs to that larger corpus of international law of the sea, which petitioner
Magallona himself defined as "a body of treaty rules and customary norms governing the
uses of the sea, the exploitation of its resources, and the exercise of jurisdiction over
maritime regimes. x x x x" (Merlin M. Magallona, Primer on the Law of the Sea 1 [1997])
(Italicization supplied).

24 Following Article 47 (1) of UNCLOS III which provides:

 An archipelagic State may draw straight archipelagic baselines joining the outermost
points of the outermost islands and drying reefs of the archipelago provided that
within such baselines are included the main islands and an area in which the ratio of
the area of the water to the area of the land, including atolls, is between 1 to 1 and 9
to 1. (Emphasis supplied)

25Under the United Nations Charter, use of force is no longer a valid means of acquiring
territory.

26The last paragraph of the preamble of UNCLOS III states that "matters not regulated by
this Convention continue to be governed by the rules and principles of general international
law."

27 Rollo, p. 51.

28 Id. at 51-52, 64-66.

29 Based on figures respondents submitted in their Comment (id. at 182).

30 Under Article 74.

31 See note 7.

32 Presidential Decree No. 1596 classifies the KIG as a municipality of Palawan.

33KIG lies around 80 nautical miles west of Palawan while Scarborough Shoal is around 123
nautical west of Zambales.

34 Journal, Senate 14th Congress 44th Session 1416 (27 January 2009).

35 Rollo, p. 159.

36 Section 2, RA 9522.

37 Article 121 provides: "Regime of islands. —

1. An island is a naturally formed area of land, surrounded by water, which is above

water at high tide.

2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the
exclusive economic zone and the continental shelf of an island are determined in
accordance with the provisions of this Convention applicable to other land territory.

3. Rocks which cannot sustain human habitation or economic life of their own shall
have no exclusive economic zone or continental shelf."

38 Rollo, pp. 56-57, 60-64.

39Paragraph 2, Section 2, Article XII of the Constitution uses the term "archipelagic waters"
separately from "territorial sea." Under UNCLOS III, an archipelagic State may have internal
waters – such as those enclosed by closing lines across bays and mouths of rivers. See
Article 50, UNCLOS III. Moreover, Article 8 (2) of UNCLOS III provides: "Where the
establishment of a straight baseline in accordance with the method set forth in article 7 has
the effect of enclosing as internal waters areas which had not previously been considered
as such, a right of innocent passage as provided in this Convention shall exist in those
waters." (Emphasis supplied)

40 Mandated under Articles 52 and 53 of UNCLOS III:

Article 52. Right of innocent passage. —

1. Subject to article 53 and without prejudice to article 50, ships of all States
enjoy the right of innocent passage through archipelagic waters, in
accordance with Part II, section 3.

2. The archipelagic State may, without discrimination in form or in fact among

foreign ships, suspend temporarily in specified areas of its archipelagic
waters the innocent passage of foreign ships if such suspension is essential
for the protection of its security. Such suspension shall take effect only after
having been duly published. (Emphasis supplied)

Article 53. Right of archipelagic sea lanes passage. —

1. An archipelagic State may designate sea lanes and air routes thereabove,
suitable for the continuous and expeditious passage of foreign ships and
aircraft through or over its archipelagic waters and the adjacent territorial sea.

2. All ships and aircraft enjoy the right of archipelagic sea lanes
passage in such sea lanes and air routes.

3. Archipelagic sea lanes passage means the exercise in accordance with

this Convention of the rights of navigation and overflight in the normal mode
solely for the purpose of continuous, expeditious and unobstructed transit
between one part of the high seas or an exclusive economic zone and
another part of the high seas or an exclusive economic zone.

4. Such sea lanes and air routes shall traverse the archipelagic waters and
the adjacent territorial sea and shall include all normal passage routes used
as routes for international navigation or overflight through or over
archipelagic waters and, within such routes, so far as ships are concerned,
all normal navigational channels, provided that duplication of routes of similar
convenience between the same entry and exit points shall not be necessary.

5. Such sea lanes and air routes shall be defined by a series of continuous
axis lines from the entry points of passage routes to the exit points. Ships
and aircraft in archipelagic sea lanes passage shall not deviate more than 25
nautical miles to either side of such axis lines during passage, provided that
such ships and aircraft shall not navigate closer to the coasts than 10 per
cent of the distance between the nearest points on islands bordering the sea
lane.
 6. An archipelagic State which designates sea lanes under this article may
also prescribe traffic separation schemes for the safe passage of ships
through narrow channels in such sea lanes.

7. An archipelagic State may, when circumstances require, after giving due

publicity thereto, substitute other sea lanes or traffic separation schemes for
any sea lanes or traffic separation schemes previously designated or
prescribed by it.

8. Such sea lanes and traffic separation schemes shall conform to generally
accepted international regulations.

9. In designating or substituting sea lanes or prescribing or substituting traffic

separation schemes, an archipelagic State shall refer proposals to the
competent international organization with a view to their adoption. The
organization may adopt only such sea lanes and traffic separation schemes
as may be agreed with the archipelagic State, after which the archipelagic
State may designate, prescribe or substitute them.

10. The archipelagic State shall clearly indicate the axis of the sea lanes and
the traffic separation schemes designated or prescribed by it on charts to
which due publicity shall be given.

11. Ships in archipelagic sea lanes passage shall respect applicable sea
lanes and traffic separation schemes established in accordance with this
article.

12. If an archipelagic State does not designate sea lanes or air routes, the
right of archipelagic sea lanes passage may be exercised through the routes
normally used for international navigation. (Emphasis supplied)

41Namely, House Bill No. 4153 and Senate Bill No. 2738, identically titled "AN ACT TO
ESTABLISH THE ARCHIPELAGIC SEA LANES IN THE PHILIPPINE ARCHIPELAGIC
WATERS, PRESCRIBING THE RIGHTS AND OBLIGATIONS OF FOREIGN SHIPS AND
AIRCRAFTS EXERCISING THE RIGHT OF ARCHIPELAGIC SEA LANES PASSAGE
THROUGH THE ESTABLISHED ARCHIPELAGIC SEA LANES AND PROVIDING FOR THE
ASSOCIATED PROTECTIVE MEASURES THEREIN."

42 The relevant provision of UNCLOS III provides:

Article 17. Right of innocent passage. —

Subject to this Convention, ships of all States, whether coastal or land-

locked, enjoy the right of innocent passage through the territorial sea.
(Emphasis supplied)

Article 19. Meaning of innocent passage. —

1. Passage is innocent so long as it is not prejudicial to the peace, good

order or security of the coastal State. Such passage shall take place in
conformity with this Convention and with other rules of international law.
 2. Passage of a foreign ship shall be considered to be prejudicial to the
peace, good order or security of the coastal State if in the territorial sea it
engages in any of the following activities:

(a) any threat or use of force against the sovereignty, territorial

integrity or political independence of the coastal State, or in any other
manner in violation of the principles of international law embodied in
the Charter of the United Nations;

(b) any exercise or practice with weapons of any kind;

(c) any act aimed at collecting information to the prejudice of the

defence or security of the coastal State;

(d) any act of propaganda aimed at affecting the defence or security

of the coastal State;

(e) the launching, landing or taking on board of any aircraft;

(f) the launching, landing or taking on board of any military device;

(g) the loading or unloading of any commodity, currency or person

contrary to the customs, fiscal, immigration or sanitary laws and
regulations of the coastal State;

(h) any act of willful and serious pollution contrary to this Convention;

(i) any fishing activities;

(j) the carrying out of research or survey activities;

(k) any act aimed at interfering with any systems of communication or

any other facilities or installations of the coastal State;

(l) any other activity not having a direct bearing on passage

Article 21. Laws and regulations of the coastal State relating to innocent passage. —

1. The coastal State may adopt laws and regulations, in conformity with the
provisions of this Convention and other rules of international law, relating to
innocent passage through the territorial sea, in respect of all or any of the
following:

(a) the safety of navigation and the regulation of maritime traffic;

(b) the protection of navigational aids and facilities and other facilities
or installations;

(c) the protection of cables and pipelines;

 (d) the conservation of the living resources of the sea;

(e) the prevention of infringement of the fisheries laws and

regulations of the coastal State;

(f) the preservation of the environment of the coastal State and the
prevention, reduction and control of pollution thereof;

(g) marine scientific research and hydrographic surveys;

(h) the prevention of infringement of the customs, fiscal, immigration

or sanitary laws and regulations of the coastal State.

2. Such laws and regulations shall not apply to the design, construction,
manning or equipment of foreign ships unless they are giving effect to
generally accepted international rules or standards.

3. The coastal State shall give due publicity to all such laws and regulations.

4. Foreign ships exercising the right of innocent passage through the

territorial sea shall comply with all such laws and regulations and all generally
accepted international regulations relating to the prevention of collisions at
sea.

43 The right of innocent passage through the territorial sea applies only to ships and not to
aircrafts (Article 17, UNCLOS III). The right of innocent passage of aircrafts through the
sovereign territory of a State arises only under an international agreement. In contrast, the
right of innocent passage through archipelagic waters applies to both ships and aircrafts
(Article 53 (12), UNCLOS III).

44Following Section 2, Article II of the Constitution: "Section 2. The Philippines renounces

war as an instrument of national policy, adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all nations." (Emphasis supplied)

45"Archipelagic sea lanes passage is essentially the same as transit passage through straits"
to which the territorial sea of continental coastal State is subject. R.R. Churabill and A.V.
Lowe, The Law of the Sea 127 (1999).

46 Falling under Article 121 of UNCLOS III (see note 37).

Within the exclusive economic zone, other States enjoy the following rights under
47

UNCLOS III:

Article 58. Rights and duties of other States in the exclusive economic zone. —

1. In the exclusive economic zone, all States, whether coastal or land-locked,

enjoy, subject to the relevant provisions of this Convention, the freedoms
referred to in article 87 of navigation and overflight and of the laying of
submarine cables and pipelines, and other internationally lawful uses of the
sea related to these freedoms, such as those associated with the operation
 of ships, aircraft and submarine cables and pipelines, and compatible with
the other provisions of this Convention.

2. Articles 88 to 115 and other pertinent rules of international law apply to the
exclusive economic zone in so far as they are not incompatible with this Part.

xxxx

Beyond the exclusive economic zone, other States enjoy the freedom of the high
seas, defined under UNCLOS III as follows:

Article 87. Freedom of the high seas. —

1. The high seas are open to all States, whether coastal or land-locked.
Freedom of the high seas is exercised under the conditions laid down by this
Convention and by other rules of international law. It comprises, inter alia,
both for coastal and land-locked States:

(a) freedom of navigation;

(b) freedom of overflight;

(c) freedom to lay submarine cables and pipelines, subject to Part VI;

(d) freedom to construct artificial islands and other installations

permitted under international law, subject to Part VI;

(e) freedom of fishing, subject to the conditions laid down in section 2;

(f) freedom of scientific research, subject to Parts VI and XIII.

2. These freedoms shall be exercised by all States with due regard for the
interests of other States in their exercise of the freedom of the high seas, and
also with due regard for the rights under this Convention with respect to
activities in the Area.

48 See note 13.

49Kilosbayan, Inc. v. Morato, 316 Phil. 652, 698 (1995); Tañada v. Angara, 338 Phil. 546,
580-581 (1997).

50 G.R. No. 101083, 30 July 1993, 224 SCRA 792.

51 "The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea,
and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino
citizens."

52 "The State shall protect the rights of subsistence fishermen, especially of local
communities, to the preferential use of the communal marine and fishing resources, both
inland and offshore. It shall provide support to such fishermen through appropriate
 technology and research, adequate financial, production, and marketing assistance, and
other services. The State shall also protect, develop, and conserve such resources. The
protection shall extend to offshore fishing grounds of subsistence fishermen against foreign
intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine
and fishing resources."

53This can extend up to 350 nautical miles if the coastal State proves its right to claim an
extended continental shelf (see UNCLOS III, Article 76, paragraphs 4(a), 5 and 6, in relation
to Article 77).

54 Rollo, pp. 67-69.

55 Article 47 (1) provides: "An archipelagic State may draw straight archipelagic baselines
joining the outermost points of the outermost islands and drying reefs of the archipelago
provided that within such baselines are included the main islands and an area in which the
ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9
to 1." (Emphasis supplied) in the Area.

The Lawphil Project - Arellano Law Foundation

CONCURRING OPINION

VELASCO, JR., J.:

I concur with the ponencia and add the following complementary arguments and observations:

A statute is a product of hard work and earnest studies of Congress to ensure that no constitutional
provision, prescription or concept is infringed. Withal, before a law, in an appropriate proceeding, is
nullified, an unequivocal breach of, or a clear conflict with, the Constitution must be demonstrated in
such a way as to leave no doubt in the mind of the Court.1 In the same token, if a law runs directly
afoul of the Constitution, the Court’s duty on the matter should be clear and simple: Pursuant to its
judicial power and as final arbiter of all legal questions,2 it should strike such law down, however
laudable its purpose/s might be and regardless of the deleterious effect such action may carry in its
wake.

Challenged in these proceedings is the constitutionality of Republic Act (RA 9522) entitled "An Act to
Amend Certain Provisions of [RA] 3046, as Amended by [RA] 5446 to Define the Archipelagic
Baselines Of The Philippines and for Other Purposes." For perspective, RA 3046, "An Act to Define
the Baselines of the Territorial Sea of the Philippines, was enacted in 1961 to comply with the United
Nations Convention on the Law of the Sea (UNCLOS) I. Eight years later, RA 5446 was enacted to
amend typographical errors relating to coordinates in RA 3046. The latter law also added a provision
asserting Philippine sovereignty over Sabah.

As its title suggests, RA 9522 delineates archipelagic baselines of the country, amending in the
process the old baselines law, RA 3046. Everybody is agreed that RA 9522 was enacted in
response to the country’s commitment to conform to some 1982 Law of the Sea Convention (LOSC)
or UNCLOS III provisions to define new archipelagic baselines through legislation, the Philippines
having signed3 and eventually ratified4 this multilateral treaty. The Court can take judicial notice that
RA 9522 was registered and deposited with the UN on April 4, 2009.

As indicated in its Preamble,5 1982 LOSC aims, among other things, to establish, with due regard for
the sovereignty of all States, "a legal order for the seas and oceans which will facilitate international
communication, and will promote the peaceful uses of the seas and oceans." One of the measures
to attain the order adverted to is to have a rule on baselines. Of particular relevance to the
Philippines, as an archipelagic state, is Article 47 of UNCLOS III which deals with baselines:

1. An archipelagic State may draw straight archipelagic baselines joining the outermost
points of the outermost islands and drying reefs of the archipelago provided that within such
baselines are included the main islands and an area in which the ratio of the area of the
water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.

2. The length of such baseline shall not exceed 100 nautical miles, except that up to 3 per
cent of the total number of baselines enclosing any archipelago may exceed that length, up
to a maximum length of 125 nautical miles.

3. The drawing of such baselines shall not depart to any appreciable extent from the general
configuration of the archipelago.

xxxx

9. The archipelagic State shall give due publicity to such charts or lists of geographical co-
ordinates and shall deposit a copy of each such chart or list with the Secretary-General of
the United Nations.6 (Emphasis added.)

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

The Government of the Republic of the Philippines [GRP] hereby manifests that in signing the 1982
United Nations Convention on the Law of the Sea, it does so with the understandings embodied in
this declaration, made under the provisions of Article 310 of the Convention, to wit:

The signing of the Convention by the [GRP] shall not in any manner impair or prejudice the
sovereign rights of the [RP] under and arising from the Constitution of the Philippines;

Such signing shall not in any manner affect the sovereign rights of the [RP] as successor of the
United States of America [USA], under and arising out of the Treaty of Paris between Spain and the
United States of America of December 10, 1898, and the Treaty of Washington between the [USA]
and Great Britain of January 2, 1930;

xxxx

Such signing shall not in any manner impair or prejudice the sovereignty of the [RP] over any
territory over which it exercises sovereign authority, such as the Kalayaan Islands, and the waters
appurtenant thereto;
The Convention shall not be construed as amending in any manner any pertinent laws and
Presidential Decrees or Proclamations of the Republic of the Philippines. The [GRP] maintains and
reserves the right and authority to make any amendments to such laws, decrees or proclamations
pursuant to the provisions of the Philippine Constitution;

The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair
the sovereignty of the Philippines as an archipelagic state over the sea lanes and do not deprive it of
authority to enact legislation to protect its sovereignty independence and security;

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

Petitioners challenge the constitutionality of RA 9522 on the principal ground that the law violates
Section 1, Article I of the 1987 Constitution on national territory which states:

Section 1. The national territory comprises the Philippine archipelago, with all the islands and waters
embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction,
consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the
subsoil, the insular shelves, and other submarine areas. The waters around, between, and
connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of
the internal waters of the Philippines. (Emphasis supplied.)

According to Fr. Joaquin Bernas, S.J., himself a member of the 1986 Constitutional Commission
which drafted the 1987 Constitution, the aforequoted Section 1 on national territory was "in
substance a copy of its 1973 counterpart."9 Art. I of the 1973 Constitution reads:

Section 1. The national territory comprises the Philippine archipelago, with all the islands and waters
embraced therein, and all other territories belonging to the Philippines by historic right or legal title,
including the territorial sea, the air space, the subsoil, the insular shelves, and other submarine
areas over which the Philippines has sovereignty or jurisdiction. The waters around, between, and
connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of
the internal waters of the Philippines. (Emphasis added.)

As may be noted both constitutions speak of the "Philippine archipelago," and, via the last sentence
of their respective provisions, assert the country’s adherence to the "archipelagic principle." Both
constitutions divide the national territory into two main groups: (1) the Philippine archipelago and (2)
other territories belonging to the Philippines. So what or where is Philippine archipelago
contemplated in the 1973 and 1987 Constitutions then? Fr. Bernas answers the poser in the
following wise:

Article I of the 1987 Constitution cannot be fully understood without reference to Article I of the 1973
Constitution. x x x

xxxx

x x x To understand [the meaning of national territory as comprising the Philippine archipelago], one
must look into the evolution of [Art. I of the 1973 Constitution] from its first draft to its final form.

Section 1 of the first draft submitted by the Committee on National Territory almost literally
reproduced Article I of the 1935 Constitution x x x. Unlike the 1935 version, however, the draft
designated the Philippines not simply as the Philippines but as "the Philippine archipelago.10 In
response to the criticism that the definition was colonial in tone x x x, the second draft further
designated the Philippine archipelago, as the historic home of the Filipino people from its
beginning.11

After debates x x x, the Committee reported out a final draft, which became the initially approved
version: "The national territory consists of the Philippine archipelago which is the ancestral home of
the Filipino people and which is composed of all the islands and waters embraced therein…"

What was the intent behind the designation of the Philippines as an "archipelago"? x x x Asked by
Delegate Roselller Lim (Zamboanga) where this archipelago was, Committee Chairman Quintero
answered that it was the area delineated in the Treaty of Paris. He said that objections to the
colonial implication of mentioning the Treaty of Paris was responsible for the omission of the express
mention of the Treaty of Paris.

Report No. 01 of the Committee on National Territory had in fact been explicit in its delineation of the
expanse of this archipelago. It said:

Now if we plot on a map the boundaries of this archipelago as set forth in the Treaty of Paris, a huge
or giant rectangle will emerge, measuring about 600 miles in width and 1,200 miles in length. Inside
this giant rectangle are the 7,100 islands comprising the Philippine Islands. From the east coast of
Luzon to the eastern boundary of this huge rectangle in the Pacific Ocean, there is a distance of
over 300 miles. From the west coast of Luzon to the western boundary of this giant rectangle in the
China sea, there is a distance of over 150 miles.

When the [US] Government enacted the Jones Law, the Hare-Hawes Cutting Law and the Tydings
McDuffie Law, it in reality announced to the whole world that it was turning over to the Government
of the Philippine Islands an archipelago (that is a big body of water studded with islands), the
boundaries of which archipelago are set forth in Article III of the Treaty of Paris. It also announced to
the whole world that the waters inside the giant rectangle belong to the Philippines – that they are
not part of the high seas.

When Spain signed the Treaty of Paris, in effect she announced to the whole world that she was
ceding to the [US] the Philippine archipelago x x x, that this archipelago was bounded by lines
specified in the treaty, and that the archipelago consisted of the huge body of water inside the
boundaries and the islands inside said boundaries.

The delineation of the extent of the Philippine archipelago must be understood in the context of the
modifications made both by the Treaty of Washington of November 7, 1900, and of the Convention
of January 12, 1930, in order to include the Islands of Sibutu and of Cagayan de Sulu and the Turtle
and Mangsee Islands. However, x x x the definition of the archipelago did not include the Batanes
group[, being] outside the boundaries of the Philippine archipelago as set forth in the Treaty of Paris.
In literal terms, therefore, the Batanes islands would come not under the Philippine archipelago but
under the phrase "all other territories belong to the Philippines."12 x x x (Emphasis added.)

From the foregoing discussions on the deliberations of the provisions on national territory, the
following conclusion is abundantly evident: the "Philippine archipelago" of the 1987 Constitution is
the same "Philippine archipelago" referred to in Art. I of the 1973 Constitution which in turn
corresponds to the territory defined and described in Art. 1 of the 1935 Constitution,13 which
pertinently reads:
Section 1. The Philippines comprises all the territory ceded to the [US] by the Treaty of Paris
concluded between the [US] and Spain on the tenth day of December, [1898], the limits of which are
set forth in Article III of said treaty, together with all the islands in the treaty concluded at
Washington, between the [US] and Spain on November [7, 1900] and the treaty concluded between
the [US] and Great Britain x x x.

While the Treaty of Paris is not mentioned in both the 1973 and 1987 Constitutions, its mention, so
the nationalistic arguments went, being "a repulsive reminder of the indignity of our colonial past,"14 it
is at once clear that the Treaty of Paris had been utilized as key reference point in the definition of
the national territory.

On the other hand, the phrase "all other territories over which the Philippines has sovereignty or
jurisdiction," found in the 1987 Constitution, which replaced the deleted phrase "all territories
belonging to the Philippines by historic right or legal title"15 found in the 1973 Constitution, covers
areas linked to the Philippines with varying degrees of certainty.16 Under this category would fall: (a)
Batanes, which then 1971 Convention Delegate Eduardo Quintero, Chairperson of the Committee
on National Territory, described as belonging to the Philippines in all its history;17 (b) Sabah, over
which a formal claim had been filed, the so-called Freedomland (a group of islands known as
Spratleys); and (c) any other territory, over which the Philippines had filed a claim or might acquire in
the future through recognized modes of acquiring territory.18 As an author puts it, the deletion of the
words "by historic right or legal title" is not to be interpreted as precluding future claims to areas over
which the Philippines does not actually exercise sovereignty.19

Upon the foregoing perspective and going into specifics, petitioners would have RA 9522 stricken
down as unconstitutional for the reasons that it deprives the Philippines of what has long been
established as part and parcel of its national territory under the Treaty of Paris, as supplemented by
the aforementioned 1900 Treaty of Washington or, to the same effect, revises the definition on or
dismembers the national territory. Pushing their case, petitioners argue that the constitutional
definition of the national territory cannot be remade by a mere statutory act.20 As another point,
petitioners parlay the theory that the law in question virtually weakens the country’s territorial claim
over the Kalayaan Island Group (KIG) and Sabah, both of which come under the category of "other
territories" over the Philippines has sovereignty or jurisdiction. Petitioners would also assail the law
on grounds related to territorial sea lanes and internal waters transit passage by foreign vessels.

It is remarkable that petitioners could seriously argue that RA 9522 revises the Philippine territory as
defined in the Constitution, or worse, constitutes an abdication of territory.

It cannot be over-emphasized enough that RA 9522 is a baseline law enacted to implement the 1982
LOSC, which in turn seeks to regulate and establish an orderly sea use rights over maritime zones.
Or as the ponencia aptly states, RA 9522 aims to mark-out specific base points along the Philippine
coast from which baselines are drawn to serve as starting points to measure the breadth of the
territorial sea and maritime zones.21 The baselines are set to define the sea limits of a state, be it
coastal or archipelagic, under the UNCLOS III regime. By setting the baselines to conform to the
prescriptions of UNCLOS III, RA 9522 did not surrender any territory, as petitioners would insist at
every turn, for UNCLOS III is concerned with setting order in the exercise of sea-use rights, not the
acquisition or cession of territory. And let it be noted that under UNCLOS III, it is recognized that
countries can have territories outside their baselines. Far from having a dismembering effect, then,
RA 9522 has in a limited but real sense increased the country’s maritime boundaries. How this
situation comes about was extensively explained by then Minister of State and head of the Philippine
delegation to UNCLOS III Arturo Tolentino in his sponsorship speech22 on the concurrence of the
Batasang Pambansa with the LOSC:
xxxx

Then, we should consider, Mr. Speaker, that under the archipelagic principle, the whole area inside
the archipelagic base lines become a unified whole and the waters between the islands which
formerly were regarded by international law as open or international seas now become waters under
the complete sovereignty of the Filipino people. In this light there would be an additional area of
141,800 square nautical miles inside the base lines that will be recognized by international law as
Philippine waters, equivalent to 45,351,050 hectares. These gains in the waters of the sea,
45,211,225 hectares outside the base lines and 141,531,000 hectares inside the base lines, total
93,742,275 hectares as a total gain in the waters under Philippine jurisdiction.

From a pragmatic standpoint, therefore, the advantage to our country and people not only in terms of
the legal unification of land and waters of the archipelago in the light of international law, but also in
terms of the vast resources that will come under the dominion and jurisdiction of the Republic of the
Philippines, your Committee on Foreign Affairs does not hesitate to ask this august Body to concur
in the Convention by approving the resolution before us today.

May I say it was the unanimous view of delegations at the Conference on the Law of the Sea that
archipelagos are among the biggest gainers or beneficiaries under the Convention on the Law of the
Sea.

Lest it be overlooked, the constitutional provision on national territory, as couched, is broad enough
to encompass RA 9522’s definition of the archipelagic baselines. To reiterate, the laying down of
baselines is not a mode of acquiring or asserting ownership a territory over which a state exercises
sovereignty. They are drawn for the purpose of defining or establishing the maritime areas over
which a state can exercise sovereign rights. Baselines are used for fixing starting point from which
the territorial belt is measured seawards or from which the adjacent maritime waters are measured.
Thus, the territorial sea, a marginal belt of maritime waters, is measured from the baselines
extending twelve (12) nautical miles outward.23 Similarly, Art. 57 of the 1982 LOSC provides that the
Exclusive Economic Zone (EEZ) "shall not extend beyond 200 nautical miles from the baselines from
which the breadth of the territorial sea is measured."24 Most important to note is that the baselines
indicated under RA 9522 are derived from Art. 47 of the 1982 LOSC which was earlier quoted.

Since the 1987 Constitution’s definition of national territory does not delimit where the Philippine’s
baselines are located, it is up to the political branches of the government to supply the deficiency.
Through Congress, the Philippines has taken an official position regarding its baselines to the
international community through RA 3046,25 as amended by RA 544626 and RA 9522. When the
Philippines deposited a copy of RA 9522 with the UN Secretary General, we effectively complied in
good faith with our obligation under the 1982 LOSC. A declaration by the Court of the
constitutionality of the law will complete the bona fides of the Philippines vis-a-vis the law of the sea
treaty.

It may be that baseline provisions of UNCLOS III, if strictly implemented, may have an imposing
impact on the signatory states’ jurisdiction and even their sovereignty. But this actuality, without
more, can hardly provide a justifying dimension to nullify the complying RA 9522. As held by the
Court in Bayan Muna v. Romulo,27 treaties and international agreements have a limiting effect on the
otherwise encompassing and absolute nature of sovereignty. By their voluntary acts, states may
decide to surrender or waive some aspects of their sovereignty. The usual underlying consideration
in this partial surrender may be the greater benefits derived from a pact or reciprocal undertaking.
On the premise that the Philippines has adopted the generally accepted principles of international
law as part of the law of the land, a portion of sovereignty may be waived without violating the
Constitution.
As a signatory of the 1982 LOSC, it behooves the Philippines to honor its obligations thereunder.
Pacta sunt servanda, a basic international law postulate that "every treaty in force is binding upon
the parties to it and must be performed by them in good faith."28 The exacting imperative of this
principle is such that a state may not invoke provisions in its constitution or its laws as an excuse for
failure to perform this duty."29

The allegation that Sabah has been surrendered by virtue of RA 9522, which supposedly repealed
the hereunder provision of RA 5446, is likewise unfounded.

Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as
provided in this Act is without prejudice to the delineation of the baselines of the territorial sea
around the territory of Sabah, situated in North Borneo, over which the Republic of the Philippines
has acquired dominion and sovereignty.

There is nothing in RA 9522 indicating a clear intention to supersede Sec. 2 of RA 5446. Petitioners
obviously have read too much into RA 9522’s amendment on the baselines found in an older law.
Aside from setting the country’s baselines, RA 9522 is, in its Sec. 3, quite explicit in its reiteration of
the Philippines’ exercise of sovereignty, thus:

Section 3. This Act affirms that the Republic of the Philippines has dominion, sovereignty and
jurisdiction over all portions of the national territory as defined in the Constitution and by provisions
of applicable laws including, without limitation, Republic Act No. 7160, otherwise known as the Local
Government Code of 1991, as amended.

To emphasize, baselines are used to measure the breadth of the territorial sea, the contiguous zone,
the exclusive economic zone and the continental shelf. Having KIG and the Scarborough Shoal
outside Philippine baselines will not diminish our sovereignty over these areas. Art. 46 of UNCLOS
III in fact recognizes that an archipelagic state, such as the Philippines, is a state "constituted wholly
by one or more archipelagos and may include other islands." (emphasis supplied) The "other
islands" referred to in Art. 46 are doubtless islands not forming part of the archipelago but are
nevertheless part of the state’s territory.

The Philippines’ sovereignty over KIG and Scarborough Shoal are, thus, in no way diminished.
Consider: Other countries such as Malaysia and the United States have territories that are located
outside its baselines, yet there is no territorial question arising from this arrangement. 30

It may well be apropos to point out that the Senate version of the baseline bill that would become RA
9522 contained the following explanatory note: The law "reiterates our sovereignty over the
Kalayaan Group of Islands declared as part of the Philippine territory under Presidential Decree No.
1596. As part of the Philippine territory, they shall be considered as a ‘regime of islands’ under
Article 121 of the Convention."31 Thus, instead of being in the nature of a "treasonous surrender" that
petitioners have described it to be, RA 9522 even harmonizes our baseline laws with our
international agreements, without limiting our territory to those confined within the country’s
baselines.

Contrary to petitioners’ contention, the classification of KIG and the Scarborough Shoal as falling
under the Philippine’s regime of islands is not constitutionally objectionable. Such a classification
serves as compliance with LOSC and the Philippines’ assertion of sovereignty over KIG and
Scarborough Shoal. In setting the baseline in KIG and Scarborough Shoal, RA 9522 states that
these are areas "over which the Philippines likewise exercises sovereignty and jurisdiction." It is,
thus, not correct for petitioners to claim that the Philippines has lost 15,000 square nautical miles of
territorial waters upon making this classification. Having 15,000 square nautical miles of Philippine
waters outside of our baselines, to reiterate, does not translate to a surrender of these waters. The
Philippines maintains its assertion of ownership over territories outside of its baselines. Even China
views RA 9522 as an assertion of ownership, as seen in its Protest32 filed with the UN Secretary-
General upon the deposit of RA 9522.

We take judicial notice of the effective occupation of KIG by the Philippines. Petitioners even point
out that national and local elections are regularly held there. The classification of KIG as under a
"regime of islands" does not in any manner affect the Philippines’ consistent position with regard to
sovereignty over KIG. It does not affect the Philippines’ other acts of ownership such as occupation
or amend Presidential Decree No. 1596, which declared KIG as a municipality of Palawan.

The fact that the baselines of KIG and Scarborough Shoal have yet to be defined would not detract
to the constitutionality of the law in question. The resolution of the problem lies with the political
departments of the government.

All told, the concerns raised by the petitioners about the diminution or the virtual dismemberment of
the Philippine territory by the enactment of RA 9522 are, to me, not well grounded. To repeat,
UNCLOS III pertains to a law on the seas, not territory. As part of its Preamble,33 LOSC recognizes
"the desirability of establishing through this Convention, with due regard for the sovereignty of all
States, a legal order for the seas and oceans x x x."

This brings me to the matter of transit passage of foreign vessels through Philippine waters.

Apropos thereto, petitioners allege that RA 9522 violates the nuclear weapons-free policy under Sec.
8, in relation to Sec. 16, Art. II of the Constitution, and exposes the Philippines to marine pollution
hazards, since under the LOSC the Philippines supposedly must give to ships of all states the right
of innocent passage and the right of archipelagic sea-lane passage.

The adverted Sec. 8, Art. II of the 1987 Constitution declares the adoption and pursuit by the
Philippines of "a policy of freedom from nuclear weapons in its territory." On the other hand, the
succeeding Sec. l6 underscores the State’s firm commitment "to protect and advance the right of the
people to a balanced and healthful ecology in accord with the rhythm and harmony of nature."
Following the allegations of petitioners, these twin provisions will supposedly be violated inasmuch
as RA 9522 accedes to the right of innocent passage and the right of archipelagic sea-lane passage
provided under the LOSC. Therefore, ships of all nations––be they nuclear-carrying warships or
neutral commercial vessels transporting goods––can assert the right to traverse the waters within
our islands.

A cursory reading of RA 9522 would belie petitioners’ posture. In context, RA 9522 simply seeks to
conform to our international agreement on the setting of baselines and provides nothing about the
designation of archipelagic sea-lane passage or the regulation of innocent passage within our
waters. Again, petitioners have read into the amendatory RA 9522 something not intended.

Indeed, the 1982 LOSC enumerates the rights and obligations of archipelagic party-states in terms
of transit under Arts. 51 to 53, which are explained below:

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

(2) All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes
and air routes.

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

But owing to the geographic structure and physical features of the country, i.e., where it is
"essentially a body of water studded with islands, rather than islands with water around them,"35 the
Philippines has consistently maintained the conceptual unity of land and water as a necessary
element for territorial integrity,36 national security (which may be compromised by the presence of
warships and surveillance ships on waters between the islands),37 and the preservation of its
maritime resources. As succinctly explained by Minister Arturo Tolentino, the essence of the
archipelagic concept is "the dominion and sovereignty of the archipelagic State within its baselines,
which were so drawn as to preserve the territorial integrity of the archipelago by the inseparable
unity of the land and water domain."38 Indonesia, like the Philippines, in terms of geographic reality,
has expressed agreement with this interpretation of the archipelagic concept. So it was that in 1957,
the Indonesian Government issued the Djuanda Declaration, therein stating :

[H]istorically, the Indonesian archipelago has been an entity since time immemorial. In view of the
1avv phi 1

territorial entirety and of preserving the wealth of the Indonesian state, it is deemed necessary to
consider all waters between the islands and entire entity.

x x x On the ground of the above considerations, the Government states that all waters
around, between and connecting, the islands or parts of islands belonging to the Indonesian
archipelago irrespective of their width or dimension are natural appurtenances of its land
territory and therefore an integral part of the inland or national waters subject to the absolute
sovereignty of Indonesia.39 (Emphasis supplied.)

Hence, the Philippines maintains the sui generis character of our archipelagic waters as
equivalent to the internal waters of continental coastal states. In other words, the landward
waters embraced within the baselines determined by RA 9522, i.e., all waters around,
between, and connecting the islands of the archipelago, regardless of their breadth and
dimensions, form part of the internal waters of the Philippines.40 Accordingly, such waters are
not covered by the jurisdiction of the LOSC and cannot be subjected to the rights granted to
foreign states in archipelagic waters, e.g., the right of innocent passage,41 which is allowed
only in the territorial seas, or that area of the ocean comprising 12 miles from the baselines
of our archipelago; archipelagic sea-lane passage;42 over flight;43 and traditional fishing
rights.44

Our position that all waters within our baselines are internal waters, which are outside the
jurisdiction of the 1982 LOSC,45 was abundantly made clear by the Philippine Declaration at
the time of the signing of the LOSC on December 10, 1982. To reiterate, paragraphs 5, 6
and 7 of the Declaration state:
 5. The Convention shall not be construed as amending in any manner any pertinent laws and
Presidential decrees of Proclamation of the republic of the Philippines; the Government x x x
maintains and reserves the right and authority to make any amendments to such laws,
decrees or proclamations pursuant to the provisions of the Philippine Constitution;

6. The provisions of the Convention on archipelagic passage through sea lanes do not nullify
or impair the sovereignty of the Philippines as an archipelagic State over the sea lanes and
do not deprive it of authority to enact legislation to protect its sovereignty, independence and
security;

7. The concept of archipelagic waters is similar to the concept of internal waters under the
Constitution of the Philippines and removes straits connecting this water with the economic
zone or high seas from the rights of foreign vessels to transit passage for international
navigation. (Emphasis supplied.)46

More importantly, by the ratification of the 1987 Constitution on February 2, 1987, the integrity of the
Philippine state as comprising both water and land was strengthened by the proviso in its first article,
viz: "The waters around, between, and connecting the islands of the [Philippine] 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.

PRESBITERO J. VELASCO, JR.

Associate Justice