Concept of the State: Territory

Magallona vs Ermita
G.R. No. 187167; August 16, 2011
Antecedent:
In 1961, Congress passed RA 3046 demarcating the maritime baselines of the
Philippines as an archipelagic state. This law followed the framing of the Convention on
the Territorial Sea and the Contiguous Zone in 1958 (UNCLOS I), codifying, among
others, the sovereign right of State parties over their “territorial sea”, the breadth of
which, however, was left undetermined. Attempts to fill this void during the second
round of negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus, domestically,
RA 3046 remained unchanged for nearly five decades, save for legislation passed in
1968 (RA 5446) correcting typographical errors and reserving the drawing of baselines
around Sabah in Northern Borneo.
In March 2009, Congress amended RA 3046 by enacting RA 9522. The change
was prompted by the need to make RA 3046 compliant with the terms of UNCLOS III,
which the Philippines ratified on February 27, 1984. Among others, UNCLOS III
prescribes the water-land ratio, length, and contour of baselines of archipelagic states
like the Philippines and sets the deadline for the filing of application for the extended
continental shelf. Complying with these requirements, RA 9522 shortened one baseline,
optimized the location of some basepoints around the Philippine archipelago and
classified adjacent territories, namely, the Kalayaan Island Group (KIG) and the
Scarborough Shoal, as “regime of islands” whose islands generate their own applicable
maritime zones.
Facts:
The petitioners, Magallona, et al., assailed the constitutionality of RA 9522
(Maritime Baselines Law) which mandates the adjustment of the country’s archipelagic
baselines and classifying the baseline regime of nearby territories. Petitioners further
assailed RA 9522 would make the Philippine archipelago lose about 15,000 square
nautical miles of territorial waters; and the by recognizing the Kalayaan Island Group
and the Scarborough Shoal as “regime of islands” would weaken our claim of
sovereignty over them. RA 9522 aims to amend RA 3046 by complying with the terms
of United Nations Convention on the law of the Sea (UNCLOS III).
Issue/s:
Whether or not RA 9522 is unconstitutional for reducing the Philippine Maritime
Territory?
Whether or not RA 9522 actually reduced our national territory?
Whether or not RA 9522 weakened our claim over the KIG and the Scarborough
Shoal?
Held:
RA 9522 is CONSTITUTIONAL. It is a statutory tool to demarcate the
country’s maritime zones and continental shelf under UNCLOS III, not to delineate
Philippine territory. UNCLOS III has nothing to do with the acquisition (or loss) of
territory. It is a multilateral treaty regulating, among others, sea-use rights over
maritime zones and continental shelves which UNCLOS III delimits. UNCLOS III was the
culmination of decades-long negotiations among United Nations members to codify
norms regulating the conduct of states in the world’s oceans and submarine areas,
recognizing coastal and archipelagic states’ graduated authority over a limited span of
waters and submarine lands along their coasts. Further, UNCLOS is a product of
international negotiation that seeks to balance State sovereignty (mare clausum) and
the principle of freedom of the high seas (mare liberum). An overwhelming majority—
over 80%— of nation states are now members of UNCLOS, but the United States, the
world’s leading maritime power, has not ratified it.
On the other hand, baseline laws such as RA 9522 are enacted by UNCLOS III
state parties to work out specific basepoints along their coasts from which baselines are
drawn, either straight or contoured, to serve as geographic starting points to measure
the breadth of the maritime zones and continental shelf.
Thus, baseline laws are nothing but statutory mechanisms for UNCLOS III state
parties to delimit with precision the extent of their maritime zones and continental
shelves. In turn, this gives notice to the rest of the international community of the
scope of the maritime space and submarine areas within which state parties exercise
treaty-based rights, namely: [1] the exercise of sovereignty over territorial waters
(Article 2), [2] the jurisdiction to enforce customs, fiscal, immigration, and sanitation
laws in the contiguous zone (Article 33), and [3] the right to exploit living and non-
living resources in the exclusive economic zone (Article 56) and continental shelf (Article
77).
States acquire (or conversely, lose) territory through occupation, accretion,
cession, and prescription, not by executing multilateral treaties on the regulations of
sea-use rights or enacting statutes to comply with the treaty’s terms to delimit maritime
zones and continental shelves. Territorial claims to land features are outside UNCLOS
III and are instead governed by the rules on general international laws.
Petitioners’ assertion of loss of “about 15,000 square nautical miles of
territorial waters” under RA 9522 is similarly unfounded both in fact and law.
On the contrary, RA 9522, by optimizing the location of basepoints, increased
the Philippines’ total maritime space (covering its internal waters, territorial
sea, and exclusive economic zone) by 145,216 square nautical miles.
The configuration of the baselines drawn under RA 3046 and RA 9522 shows
that the latter merely followed the basepoints mapped by the former, save for at least
nine basepoints that the latter skipped to optimize the location of basepoints and adjust
the length of one baseline (and thus comply with UNCLOS III’s limitation on the
maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and
Scarborough Shoal shall lie outside the baselines drawn around the Philippine
archipelago. This undeniable cartographic fact takes the wind out of petitioners’
argument branding RA 9522 as a statutory renunciation of the Philippines’ claim over
the KIG, assuming that baselines are relevant for this purpose.
RA 9522’s use of the framework of Regime of Islands to determine the
maritime zones of the Kalayaan Island Group and the Scarborough Shoal is
no inconsistent with Philippines’ claim of sovereignty over these areas.
Further, petitioners’ argument that the KIG now lies outside the Philippine
territory because the baselines that RA 9522 draws do not enclose the KIG is negated
by RA 9522 itself. Section 2 of the law commits to text the Philippines’ continued claim
of sovereignty and jurisdiction over the KIG and the Scarborough Shoal.
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of
the Philippine archipelago, adverse legal effects would have ensued. The Philippines
would have committed a breach of two provisions of UNCLOS III.
Article 47 (3) of UNCLOS III states that:
“the drawing of such baselines shall not depart to any
appreciable extent from the general configuration of the
archipelago”
 and that, Article 47 (2) of UNCLOS III states that:
“the length of baselines shall not exceed 100
nautical miles” (save 33% of the total number of baselines
which can reach up to 125 nautical miles)
Although the Philippines has consistently claimed sovereignty over the KIG and
the Scarborough Shoal for several decades, these outlying areas are located at an
appreciable distance from the nearest shoreline of the Philippine archipelago, such that
any straight baseline loped around them from the nearest basepoint will inevitably
“depart to an appreciable extent from the general configuration of our archipelago.”
Under Article 121 of the UNCLOS III, any “naturally formed area of land,
surrounded by water, which is above water at high tide”, such as portions of the KIG,
qualifies under the category of ‘regime of islands’; whose lands generate their own
applicable maritime zone. Philippine claims over KIG and Scarborough Shoal as ‘regime
of islands’ manifests the State’s responsible observance of its pacta sunt servanda
obligation.
RA 9522’s use of the framework of ‘regime of islands’ to determine the
maritime zones of the KIG and the Scarborough Shoal, not inconsistent with
the Philippines’ claim of sovereignty over the areas (in line with UNCLOS).
The country’s statutory claim over Sabah under RA 5446 is retained because
RA 9522 does not repeal RA 5446.
The Supreme Court declared that UNCLOS III and RA 9522 are not
incompatible with the constitution’s delineation of internal waters, because
under current norms of international law, the right of innocent passage is
recognized over archipelagic waters or internal waters, however, they may
be denominated.
Thus, the enactment of UNCLOS III compliant baseline laws for the
Philippine archipelago and adjacent areas, as embodied in RA 9522, allows
an internationally recognized delineation 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 out national interest.
NOTES:
ART. 1 – NATIONAL TERRITORY
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.
ARCHIPELAGO DOCTRINE
>Connect outermost points of our archipelago with straight baselines and consider all
waters enclosed thereby as internal waters
>Entire archipelago is regarded as one integrated unit of being fragmented into so
many thousand islands
>Without the doctrine, it will result to dismemberment of archipelago (ex: Sibuyan
Island and Palawan); part of Philippine waters would become international waters or
high seas (ex: Camiguin- distance from shore to shore is 29 nautical miles)
UNCLOS
>3 Functions: defines the rights and responsibilities of nations in their use of the
world’s oceans establishing guidelines for businesses, the environment, and
management of marine natural resources
>Can’t be used for military purposes
>Milestones: Concluded – December 10, 1982 (Montego Bay, Jamaica)
Philippines signed May 8, 1984
China signed June 7, 1986 (wanted sole exploitation rights)
Ratified by 165 countries
>Settlement of disputes: Part XV – State which ratified UNCLOS shall choose 1 or more
of the following means for settlement of disputes
a) International Tribunal for the Law of the Seas
b) ICJ
c) Arbitral Tribunal
d) Special Arbitral Tribunal
Right of Innocent Passage
The archipelagic state enjoys sovereign rights over all waters enclosed by the
baselines, described as archipelagic waters, regardless of their depth and distance from
the coast. However, in order to preserve international navigation, especially through
waters that were formally high seas, all states enjoy the right of innocent passage
through archipelagic waters. The archipelagic state may, however, suspend temporarily,
without discrimination, the right of innocent passage in specified areas, when deemed
essential for the protection of national security, provided that such suspension shall
take effect only after due publication. (Arts. 52 and 53 of UNCLOS)
 Zone Coverage Rights
1) Internal Waters Waters on landward side PH- full sovereignty
of baseline Foreign- no right of
passage
2) Territorial Sea 12 nautical miles (22 km) PH- full sovereignty
(Maritime Belt) from baseline Foreign- no right of
passage but allowed for
trade
3) Contiguous Zone 12 nautical miles (22 km) PH- limited jurisdiction;
(not part of from territorial sea enforce customs, taxation,
territory) and pollution laws
4) Exclusive Economic 200 nautical miles (370 PH- sole exploitation rights
Zone km) from baseline over natural resources
Foreign- navigation,
overflight, lay submarine
pipes and cables
5) Continental Shelf Not to exceed 300 nautical PH- exclusive right to
miles (650 km) from harvest materials
baseline
Table 1. Ocean Boundaries under UNCLOS

Exhibit 1. Ocean Boundaries under UNCLOS

Exhibit 2. Archipelagic Baselines as defined by RA 9522