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 Protest[32] 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 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.

[1]
League of Cities of the Phil. v. COMELEC, G.R. No. 176951, December 21, 2009, 608 SCRA 636.
[2]
Under Art. VIII, Sec. 5 of the Constitution, the Supreme Court is empowered to review, revise, reverse,
modify, or affirm on appeal or certiorari as the law or the Rules of Court may provide, final judgments and
orders of lower courts in: all cases in which the Constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in
question. (Emphasis supplied.)
[3]
December 10, 1982.
[4]
May 8, 1984.
[5]
Available on (visited July 28, 2011).
[6]
UNCLOS, Art. 47, December 10, 1982.
[7]
J. Bernas, S.J., The 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES A
COMMENTARY 57 (2003).
[8]
See J. Batongbacal, The Metes and Bounds of the Philippine National Territory, An International Law and
Policy Perspective, Supreme Court of the Philippines, Philippine Judicial Academy Third Distinguished
Lecture, Far Eastern University, June 27, 2008.
[9]
J. Bernas, supra note 7, at 10.
[10]
Citing Report No. 01 of the Committee on National Territory.
[11]
Citing Report No. 02 of the Committee on National Territory.
[12]
J. Bernas, supra note 7, at 11-14.
[13]
Id. at 14.
[14]
Id. at 9; citing Speech, Session February 15, 1972, of Delegates Amanio Sorongon, et al.
[15]
The history of this deleted phrase goes back to the last clause of Art. I of the 1935 Constitution which
included "all territory over which the present Government of the Philippine Islands exercises jurisdiction. See J.
Bernas, supra note 7, at 14.
[16]
J. Bernas, supra note 7, at 16.
[17]
Id.; citing deliberations of the February 17, 1972 Session.
[18]
Id.
[19]
DE LEON, PHILIPPINE CONSTITUTION 62 (2011).
[20]
Petition, pp. 4-5.
[21]
Art. 48 of UNCLOS III provides that the breadth of the territorial sea, the contiguous zone, the exclusive
economic zone and the continental shelf shall be measured from the archipelagic baseline drawn in accordance
with Art. 47.
[22]
R.P. Lotilla, THE PHILIPPINE NATIONAL TERRITORY: A COLLECTION OF RELATED
DOCUMENTS 513-517 (1995); citing Batasang Pambansa, Acts and Resolution, 6 th Regular Session.
[23]
J. Bernas, supra note 7, at 22.
[24]
UNCLOS III, Art. 57.
[25]
June 17, 1961.
[26]
September 18, 1968.
[27]
G.R. No. 159618, February 1, 2011; citing Tañada v. Angara, G.R. No. 118295, May 2, 1997, 272 SCRA
18.
[28]
Art. 26, Vienna Convention on the Law of Treaties, 1969.
[29]
Art. 13, Declaration of Rights and Duties of States Adopted by the International Law Commission, 1949.
[30]
See J. Batongbacal, supra note 8.
[31]
Id.
[32]
The Protest reads in part: "The above-mentioned Philippine Act illegally claims Huangyan Island (referred
as "Bajo de Masinloc" in the Act) of China as "areas over which the Philippines likewise exercises sovereignty
and jurisdiction." The Chinese Government hereby reiterates that Huangyan Island and Nansha Islands have
been part of the territory of China since ancient time. The People's Republic of China has indisputable
sovereignty over Huangyan Island and Nansha Islands and their surrounding areas. Any claim to territorial
sovereignty over Huangyan Island and Nansha Islands by any other State is, therefore, null and void." Available
on

(visited August 9, 2011).

[33]
Supra note 5.
[34]
C. Ku, The Archipelagic States Concept and Regional Stability in Southeast Asia, Case W. Res. J. Int'l L.,
Vol. 23:463, 469; citing 1958 U.N. Conference on the Law of the Sea, Summary Records 44, Doc. A/Conf.
13/42.
[35]
Id.
[36]
Hiran W. Jayewardene, The Regime of Islands in International Law, AD Dordrecht: Martinus Nijhoff
Publishers, p. 103 (1990).
[37]
Id. at 112.
[38]
UNCLOS III Off. Rec., Vol. II, 264, par. 65, and also pars. 61-62 and 66; cited in B. Kwiatkowska, "The
Archipelagic Regime in Practice in the Philippines and Indonesia - Making or Breaking International Law?",
International Journal of Estuarine and Coastal Law, Vol. 6, No. 1, pp. 6-7.
[39]
4 Whiteman D.G., International Law 284 (1965); quoted in C. Ku, supra note 34, at 470.
[40]
1987 Constitution, Art. I.
[41]
LOSC, Arts. 52 and 54.
[42]
LOSC, Art. 53, par. 2.
[43]
LOSC, Art. 53, par. 2.
[44]
LOSC, Art. 51.
[45]
LOSC, Art. 8, par. 2.
[46]
Cf. B. Kwiatkowska, supra note 38; citing J.D. Ingles, "The United Nations Convention on the Law of the
Sea: Implications of Philippine Ratification," 9 Philippine Yil (1983) 48-9 and 61-2; and Congress of the
Philippines, First Regular Session, Senate, S. No. 232, Explanatory Note and An Act to Repeal Section 2
(concerning TS baselines around Sabah disputed with Malaysia) of the 1968 Act No. 5446.