I THE NATIONAL TERRITORY ARTICL ae qk Tu NemovaL texwrony coMpRses ‘THe EMBRACED age WITH ALL THE ISLANDS AND WATERS THE Prmuprin EIN, AND ALL OTHER TERRITORIES OVER WHICH ES 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 PuILiPPiNes. 1. The Place of Territorial Delimitation in the 1935 Constitution. The definition of national territory found in the Constitution went through three phases. The first phase was during the 1934-1935 Con- stitutional Convention. This was followed by the deliberations of the 1972 Constitutional Convention and finally by the deliberations of the 1986 Constitutional Commission. Between 1972 and 1986, however, the Philippines became party to the 1982 Convention on the Law of the Sea. In the exposition of the law on national territory all these phases will be taken into consideration. Acconstitution is a municipal law. As such, it is binding only with- in the territorial limits of the sovereignty promulgating the constitution. For purposes of actual exercise of sovereignty, it is important for the sovereign state to know the extent of the territory over which it can legitimately exercise jurisdiction. For purposes of settling international conflicts, however, a legal instrument purporting to set out the territo- rial limits of the state must be supported by some recognized principle 5 Scanned with CamScanner: ‘THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES of international law. Hence, the silence of a constitution regarding the territorial limits of a sovereignty does not deprive such sovereignty of Any portion of territory it is entitled to under international law. however, does a constitutional definition of territory have the effect of legitimizing a territorial claim not founded on some Tegal right pro- tected by international law. Neither, Philippine constitutionalism accepts the principle that it is not the? nstitution which definitely fixes the extent of Philippine territory. This principle ran through the debates on the national territory during the 1935 Constitutional Convention.’ The existence of a territorial def nition in Article I of the 1935 Constitution was not a denial of this prin- ciple. Rather, Article I reflected a historical purpose. The determinative factor Which persuaded the 1935 Convention to include an article on national territory was the intent of the Convention to use the Constitu- tion as an international document binding on the United States. The Possibility of transforming the Constitution, a municipal law, into an international document arose from a provision of the Tydings-McDuffie Law which prescribed that the effectivity of the Philippine constitu- tion would depend partly on the acceptance of its provisions by the United States Government: Delegate Singson Encarnacion put the mat- ter bluntly: “Es cosa necessaria para nosotros. No debemos redactar nuestra Constitucion, como se ha repetido aqui muchas veces, imitando simplemente la Constitucion de otros paises; debemos poner aqui lo que es necessario, a fin de que despues no se conviertan algunas de nuestras islas en ‘yoyo’, 0 sea, que Estados Unidos retire lo que hoy de buena gana nos concede.” Answering the question of Delegate Palma, Singson Encarnacion was even more blunt: “Como sabe su senoria muy bien, en este mundo no rige el verdadero derecho internacional basado en la justicia estricta, sino la fundada en fuerza de los canones, y claro esta, es mejor que fortalezcamos desde ahora.”* Const TV 1934-1935 CONSTITUTIONAL CONVENTION RECORD 318-359, 389-447, 490- 528 (1967), hereinafter to be referred to as 1935 CONVENTION RECORD. 4Sec. 3, Act, Mar. 24, 1934, Ch, 84, 48 Stat. 546. a VENTION RECORD 342. sitar Singson Encamacion’s intervention, vote was taken ona motion to so press the provision on national teritory. The motion was defeated by a vote of 38 to 119.1d.st - Scanned with CamScannerSee. ART. | — THE NATIONAL TERRITORY 7 2. National ‘Territory under the 1935 Constitution. Atticle I, Section 1 of the 1935 Constitution read: States by the Treaty of Paris concluded between the United States and Spain on the tenth day of December, eighteen hundred and ninety-eight, 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 United States and Spain on the seventh day of November, nineteen hundred, and in the treaty concluded between the United States and Great Britain on the second day of January, nineteen hundred and thirty, and all territory over which the present Government of the Philippine Islands exercises juris- diction. The article, thus gave four points of reference for the determina- tion of Philippine territoy ) The Treaty of Paris on December 10, 1898; (2) The Treaty of Washington on November 7, 1900; (3) The treaty between Great Britain and the United States on January 2, 1930; —> (4) “all territory over which the present Government of the Philippine Islands exercises jurisdiction.” By Article III of the Treaty of Paris, Spain ceded to the United States “the archipelago known as the Philippine Islands, and compre- hending the islands lying within” the line drawn by the technical de- scription of the same-article. The technical description embodied in the Treaty of Parig¢howeyer, left some doubt about the inclusion within the ceded territory Of thé Batanes Islands to the north and of the Islands of Sibutu and Cagayan de Sult to the South as well as of the Turtle and Mangsee Islands |The Treaty of Washington of November 7, 1900 cor- rected the error with respect to the Islands of Sibutu and Cagayan de Sulu, and jurisdiction over the Turtle and Mangsee Islands was clari- fied by the convention concluded between Great Britain and the United States of January 2, 1930.5 The doubt with respect to the Batanes Is- lands, however, was left unclarified in spite of the fact that, from time immemorial, these islands had undisputedly formed part of the Philip- pine Islands. Hence, to remove the doubt, the 1935 Constitution added Scanned with CamScannerSec. oe {HIE 1987 CONSTITUTION iY OF THE REPUBLIC OF THE PHILIPPINES: i c 935) government of the clause “all territory over which the present (1935) gover the Philippine Islands exercises jurisdiction. the 1973 and 1987 3. Why a Definition of Territory Constitutions? The 1971 Convention spent a considerable amount of tin ruary 14 and 15, 1972 debating whether the new Constitution should contain a definition of Philippine territory. This question had to be set- tled before the Convention could proceed to consider amendments to the draft report of the Committee on National Territory. The principal proponent of the motion to delete the entire article on National Territory was the late Delegate Voltaire Garcia (Rizal).’ Garcia argued that territorial definition was a subject of international law, not of municipal law, and that Philippine territory was already de- fined by existing treaties. As for the Batanes Islands, Garcia pointed out that no state ever questioned the continued exercise of Philippine sovereignty over these islands. While the definition of Philippine ter- ritory in the 1935 Constitution might have been useful in 1935, Gar- cia observed that its continued presence in the Constitution had in fact embarrassed the Philippines in negotiations for territories not covered by the constitutional definition. Hence, Garcia concluded that a consti- tutional definition of territory would not only be unnecessary but could even be prejudicial to the interests of the Philippines. Answering the ac- cusation* that his reasoning was tacit advocacy of expansionism, Garcia said that international law recognized peaceful modes of acquiring new territory. Moreover, he retorted that the real advocates of expansionism were those who positively wished to mandate the state to pursue claims over areas not clearly within the Philippine territory. Garcia specifically singled out the movement to claim the Marianas Islands, a trust territory which the United Nations was.then preparing for independence. Delegates Amanio Sorongon (Iloilo 3rd district) and Magtanggol G. Gunigundo (Bulacan 1st district) supplied the “nationalistic” argu- of time on Feb- ‘Id, 327; Committee Report No, 01, Committee on National Territory, 1971 Constitutional Convention, Jan. 15, 1972; Committee Report No. 7, Committee on Territorial Delimitation 1935 Constitutional Convention, August 31, 1934; I ARusco, Tive Frasava oF THe Puuirewwe: Constrrv- Tiow 117-119 (1936), hereinafter cited as AxaUEGO. On the Batanes question, see also Speech of Delegate Villalva, Session of February 11, 1972. "Speeches, Sessions of February 14 and 15, 1972. “Infra, note 11. Scanned with CamScannerART. 1 — THE NATIONAL TERRITORY ’ ments for deletion of the article on national territory. Sorongon found the mention of the Treaty of Paris a repulsive reminder of the indig- nity of our colonial past Gunigundo, in utter disregard of the historic evolution of the Filipino nation, claimed that the Philippines © isted before Magellan ever came. More plausibly, but only after a leap over four centuries of history, he recalled that Felipe Agoncillo had protested Spain's cession of the Philippines to the United States, first, because the Philippines had not been consulted, and second, because Spain had al- ready lost effective control over the Philippines. Hence, he argued that to accept the territorial boundaries defined in the Treaty of Paris would be to lend legitimacy to the illegal act of Spain and the United States. Finally, after some irrelevant statements about the Catholic Church, Gunigundo concluded that the ancestral home of the Filipino people might be larger than the Treaty of Paris would allow.” The arguments for the inclusion of an article defining the national territory ran along two levels. On one level was an attempt to dem- onstrate the need for a clear definition of Philippine territory. Thus, Delegate Raul Roco (Camarines Sur) argued that a territorial definition was necessary for the preservation of our national wealth, for national security, and as a manifestation of our solidarity as a people."' Similarly, ‘Speech, Session February 15, 1972. Sorongon favored a process of selective recollection. He said that ifthe charter must remind us of our past, let it remind us of our glorious past — Mactan, Tirad Pass, Bataan. isGunigundo’s speech is a rambling sort of oratory best suited for losing a good cause. Session of February 15, 1972. ‘A short-sighted argument for deletion was supplied by Delegate Manuel T. Molina (Cagayan). He said that if Sabah were to be made part of Philippine territory, the Philippine ‘government would have to drop criminal cases of smuggling from Sabah. And if the President were to send an armed battalion to Sabah, nobody could rightly call such an act an invasion. Session of February 15, 1972. Not very helpfully, Delegate Clemente Abundo (Catanduanes) argued that the definition of cour “ancestral home” has already been “written in blood.” Session of February 15, 1972 ‘speech, Session of February 15, 1972. Delegate Roco also said that to argue for deletion in order to allow for expansion is to give “dangerous obeisance to the principle of expansionism.” Moreover, he suid that if some people find mention of the Treaty of Paris offensive to their nationalist sensibilities, he would favor a mere mention of treaties without specification. Delegate Juan Liwag (Nueva Ecija, 2nd district) speaking against the Committee report, was opposed to its details. First, he said that the details were an unnecessary repetition of provi- sions of R.A. No, 3046 and R.A. No, 5446, Secondly, while the proposal claimed sovereignty lover territorial waters, it did not claim dominion or ownership over the same areas. Hence, he said that the proposal did not make the territorial waters part of the Philippine public domain. This ‘observation of Liwag, however, did not get any reaction from the Convention. Speech, Session of February 15, 1972. Scanned with CamScannern See. 1 STITUTION 7 THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES conc Ie protecti legate Jose Nolledo (Palawan) expressed concern for the p ion of our national resources The arguments of Roco and Nolledo, however, did not Prove that “ i stitution. Along another the definition must be expressed in the Con: level of argumentation therefore, was an attempt to show co the defi. nition of Philippine territory must be expressed in the Constitution it. Self. In support of this proposition, Delegate Eduardo Quintero (Leyte), Chairman of the Committee on National Territory, made three points, Fist, he said that the territorial assertions found in Republic Act 3046 Were couched merely in “Whereas” clauses. These claus Ss should be “xptessed in more authoritative fashion. Second, he said that to delete the article entirely would again leave the status of the Batanes Islands in doubt. Third, he expressed the need for curing the failure of the 1935 Constitution to express the possibility of future territorial acquisitions by the Philippines. He said that this failure had caused the Philippine government some embarrassment in two conferences over Sabah, first in London in 1963 and then in Bangkok in 1968.0 Delegate Nolledo added that the ratification of the Constitution by the people should strengthen the Philippine territorial position. Similarly, Delegate Ale- Jandro Lichauco (Rizal) argued that such an important matter as ter- ritorial delimitation should not be left to subordinate agencies of the government such as the legislature or the executive.’ Admittedly, these arguments were valid for strengthening the force of our territorial definition as munici pal law. However, they did Not prove that a constitutional defini tion would strengthen Philippine {egal position in international law. The transposition of the provisions of R.A. No. 3046 to the Constitution would transform such provisic into constitutional Provisions, but the provisions would remain muni pal law, not international law. The deletion of the article on national territory would not mean abandonment of the Batanes Islands or any Portion of Philippine territory as long as Philippine jurisdiction contin: ued to be actually exercised over such territories, as in fact it had always been exercised even before the curative clause of the 1935 Constitution. "Speech, Session of February 15, 1972, "Speech, Session of February 15, 1972, Quintero was a member of the Philippine dleg tion to both the London and Bangkok conferences. See infra, note 25, “Supra, note 12. i “Interpellating Delegate V. Garcia, Session of February 14, 1972, Scanned with CamScannerSee. 1 ART. | — THE NATIONAL TERRITORY, MW Nor could the argument of estoppel, used by the British government both in London in 1963 and in Bangkok in 1968, be answered by a 1973 Unilateral assertion of jurisdiction over Sabah. 4. — The 1973 Provision on National ‘Territory. Article | of the 1987 Constitution cannot be fully understood with- out reference to Article I of the 1973 Constitution. Although the 1986 Constitutional Commission spent a considerable amount of time on Ar- ticle I, in the end the provision that emerged was in substance a copy of its 1973 Counterpart. Article I of the 1973 Constitution said: ‘The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other ter- ritories belonging to the Philippines by historic right or legal title, including the territorial sea, the air space, the subsoil, the sea-bed, the insular shelves, and the other submarine areas over which the Philippines has sovereignty or jurisdiction. The waters around, be- tween and connecting the islands of the archipelago, irrespective of their breadth and dimensions, form part of the internal waters of the Philippines. Briefly, and for purposes of analysis, Philippine national territory under the 1973 Constitution may roughly be divided into three groups: (1) the Philippine archipelago; (2) other territories belonging to the Philippines; and (3) Philippine waters, air-space, and submarine areas. The territory thus has a horizontal reach consisting of land and waters, an upward reach consisting of air-space over the land and waters, and a downward reach consisting of submarine areas. Moreover, the last sentence of the provisions makes an important assertion of adherence to the “archipelagic principle.” a. The Philippine Archipelago What or where is the Philippine archipelago? The answer given by Article I of the 1973 Constitution simply made reference to “all the islands and waters embraced therein.” The Article, however, gave no point of reference that could delineate the exact location of these islands and waters. On its face, therefore, the Article did not serve as a defini- tion of national territory. To understand its meaning, one must look into the evolution of the Article from its first draft to its final form. Scanned with CamScannern THE 1987 CONSTITUTION See. 1 OF THE REPUBLIC OF THE PHILIPPINES Section 1 of the first draft submitted by the Committee on Na- tional Territory almost literally reproduced Article I of the 1935 Con- stitution which, as shown above, embodied four points of references. Unlike the 1935 version, however, the draft designated the Philippines hot simply as the Philippines but as “the Philippine archipelago." In Tesponse to the criticism that the definition was colonial in tone in that it gave no ind: ¢ Filipinos had a native land even prior to the arrival of the Spaniards, the second, draft further designated the Phil- ippine archipelago, storic home of the Filipino people from its beginning.” This drew the comment from Delegate Voltaire Garcia that the home of our ancestors once formed part of the Madjapahit Em- Pie and that it would be ridiculous to suppose that we were claiming the vast expanse of the former Madjapahit Empire as the ancestral home of the Filipino people. After debates on February 14 and 15, 1972, the Committee re- Paired back to the drawing board and fumigated the draft of all co- lonial vermin by dropping all reference to prior treaties. On February 17, 1972, the Committee reported out a final draft, more aseptically Patriotic than clear, 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”? An archipelago may be defined, depending on one’s utilitarian preference, either as a cluster of islands forming a territorial unity, or as a unit of water studded with islands. In the first definition, the waters are considered adjuncts to the land area and their extent is determined by reference to the land area. In the second definition, the Jand area is everything that comes within the water area, The Committee preference was for the second definition."* Asked by Delegate Roseller 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 "Report No. 01 of the Committee on National Territory. "Report No.02 of the Committee on National Territory, January 31, 1972, Delegate Quin- {ero singled out Ambassador Leon Ma, Guerrero as the principal source of the criticism, Session of February 14, 1972. "Session of February 14, 1972. Scanned with CamScannerSee. 1 ARI 1.1 — THE NATIONAL TERRITORY . Treaty of Paris was res ponsil ro : ‘. of the Treaty of bags Pomsible for the omission of the express mention Reps A i Port No. 01 of the Committee on National Territory had in fact been explicit in its ; : a Plicit in its delineation of the expanse of this archipelago. It avet Now if we plot on a map the boundaries of this archipelago forth in the Treaty of Paris, a huge or giant rectangle will emerge, measuring about 600 miles in width, and over 1 200 miles in length. Inside this giant rectangle are the 7,100 islands compris- ing the Philippine Islands. From the east coast of Luzon to the castern 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 United States Government enacted the Jones Law, the Hare-Hawes-Cutting Law and the Tydings-MeDuffie 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 IIT 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 an- nounced to the whole world that she was ceding to the United States the Philippine archipelago which she had been occupying for over four hundred years, 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 2, 1930, in order to include the Islands of Sibutu and of Cagayan de Sulu and the Turtle and Mangsee Islands.” However, although the “Fo which Lim replied thatthe text should be clear even atthe risk of sounding cotonial, Session of February 17, 1972. Supra, note 5. Scanned with CamScannerSee. 1 14 ‘THE 1987 CONSTITUTION (OF THE REPUBLIC OF THE PHILIPPINES evident intent of the Convention was to secure the re = Batanes group, the definition of the archipelago did Mea ie Batanes group. Even the map distributed by the Commi sears Territory placed the Batanes Islands outside the ae ris ti Philippine archipelago as set forth in the Treaty of Paris. In literal term . therefore, the Batanes islands would come not under the Philippine archipelago but under the phrase “all other territories belonging ea Philippines.” It is submitted, however, since both geographically and historically these islands form a unity with the Philippine archipelago of the Treaty of Paris, they should be considered part of the Philippine archipelago for purposes of the 1973 Constitution." The conclusion that emerges from this discussion is that the “Phil- ippine archipelago” of the 1973 Constitution corresponds with the ter Titory defined in Article I of the 1935 Constitution. Thus must the 1973 definition be understood if it is to be a useful definition at all and not just a piece of patriotic assertion of national history dating back to an- cestral Madjapahit rulers. In other words, try as we might to forget our colonial past by erasing colonial traces from our Constitution, remem- bering history also serves our national purpose. 5. “... all other territories belonging to the Philippines: by historic right or legal title.” Under the 1973 Constitution, aside from the Philippine archipel- go, Philippine territory also includes “all other territories belonging to the Philippines by historic right or le gal title.” What are these other territories? The history of this provision goes back to the last clause of Article Tof the 1935 Constitution which included “all territory over which the present Government of the Philippine Islands exercises jurisdiction.” Section I of the first draft of the 1973 version updated the 1935 version to read: “All the territory over which the Government of the Philippines was exercising jurisdiction on July 4, 1946 as well as territory which "The importance of including the Batanes islands within the Philippine archipelago will become apparent when the “intemal waters ofthe Philippines,” as described in the we para- raph of the article, are diseussed. Quintero said: “The comectdefnition of archipelago hg $i Studded with islands. In other words an archipelago means sea plus islands. The ea seo ‘be more important than the islands.” Scanned with CamScannerSeo. ART. 1 THE NATIONAL TERRITORY ‘s said government ha / iraft saplthnay et eeied or over which it has a right." The second the e6v : Med the modification thus; “All other territories over which ¢ government of the Phili Rovtrnment of the Philippines has been exercising jurisdiction or over Which it has a right.” The final 1973 version was the draft re- ported out on February 17, 1972 Twill be recalled tha | the last clause of Article [of the 1935 Con- stitution was intended to ensure the inclusion of the Batanes Islands within Philippine territory. In his sponsorship speech delivered on Feb- ruary 11, 1972, Delegate Custodio Villalva of Batanes said that the first portion of Section 1 of the second draft saying “all other territories over which the government of the Philippines has been exercising jurisdic tion” was a carry-over from the 1935 Constitution “express imperfect or durative tense and intended to place the ten small i of the province of Batanes under the sovereignty of the Philippin Committee Report No, 01 also said that the phr draft which referred to “territory which said government has acquired or over which it has a right” was “intended to cover the claim to Sabah which has been filed by the Republic of the Philippines, and the pos- sible claim to Freedom Land and the Marianas Islands.” This comment of Committee Report No. 01 is also applicable to the clause in the sec- ond draft which referred to all territory “over which (the Philippines) has a right.” Thus, both the first and the second draft contained a clause intended to cover the Batanes Islands, which certainly formed part of Philippine territory, and all other territories over which the Philippines might have a claim both then and in the future. The clause was inserted in answer to the clamor to protect and ensure Philippine claim to terri- tories not covered by prior treaties. The intent was to avoid forfeiture of these claims by their omission from the constitutional definition. The same intent was carried over into the final draft which said “all the other territories belonging to the Philippines by historic right or legal title.” Committee Chairman Quintero said that the word “belong ing” was used both in the present and future sense: “now or later may belong.” By “historic right,” Quintero said, Batanes belonged to the Session of February 14, 1972, Pld, Vjlalva, besides going into some detail on the history of Batanes, also makes the claim that mere retention of Article I ofthe 1935 Constitution would have the effect of excluding Batanes from Philippine territory. This writer didnot check whether Villava’s hi as bad as his law. Scanned with CamScannerSee. . THE 1987 CONSTITUTION OP THE REPUBLIC OF THE PHILIPPINE Philippines because in all its history Batanes had always: been : part of the Philippines. By “historic right,” he said, the Maria ide ee also belong to the Philippines depending on historical evidence, ia e Sabah, Quintero said that Philippine jurisdiction was based on “legal tile” perfected in 1962." “Legal title” was used to mean all accepted Jegal modes of acquiring territory.* Briefly, then, the phrase “all other territories” was a catch-all used to cover areas linked to the Philippines with varying degrees of certainty and firmness. It covered Batanes, which undisputedly belonged to the Philippines. It covered Sabah, over which the Philippines had filed a formal claim. It covered the Marianas Islands and Freedom Land, claim over which was under investigation. It covered any other territory which the Philippines might acquire in the future through accepted Imernational modes of acquisition. The clause therefore was nothing more than an insurance clause which could be meaningful only if Supported by title extraneous to the Constitution. . © The territorial sea. The territorial sealof a state, as distinct from it{inland nate ) Waters, consists of a marginal belt of maritime watery adjacent to-the” base lines extending twelve nautical miles outward, Outside the territo- rial sea are.the high seas. A state exercises soverei rial seq subject to the right of innocent passage by other states, Innocent Passage is understood as passage not prejudicial to the interéSts of the” Coastal state nor contrary to recognized principles of international law. ‘The traditional length of the territorial waters measured seawards, ac- cording to the cannon-shot rule formulated in 1702, was three miles, the « effective range of 18th century defensive shore batteries. Modern law, however, now recognizes twelve nautical mile: ;'Session of February 17, 1972, Delegates Quintero and Jal Anni (Sulu) give the history of the Sabah clsim in Session of February 12, 1972. Delegate Amado , Tolentino, Jt. (Oriental Mindoro) expounds on the findings on the Marianas Islands and Delegate Geronimo M. Cabal (Batanes) on the findings on Freedom Land in Session of February 14, 1972. Commitee Report No. O1 contains substantially the same material Immediate adverse reaction tothe Convention claim over the Marianas Islands was sup- Plied by a visiting Guamanian senator, Sen, Geonge M. Haba, The Philippines Herald, February 21,1972, p.1. Under the 1935 Cons ion, the Philippines may lawfully acquire territory not covered by Amie I. Axutco 124-126, a a a ee | Scanned with CamScannerPe ia yr ¢ yam cc ten sen ou Ceahawous A ce ART. | — THE NATIONAL TERRITORY "7 _TWwo methods are used for fixing the starting point or baseline from which the territorial belt is measured seawards: “J)-the normal base- Tine method, under which the breadth of the territrial sea is measured from the low water-line, following the indentations of the oa the straight baseline method, under which instead of the baseline follow- ing the sinuosities of the coast, it is drawn as straight lines connecting appropriate points on the coast, without departing to any appreciable extent from the general direction of the coast.”” Both the first and second draft of the 1973 article on national ter~ ritory contained the following provision: “All the waters beyond the outermost islands of the archipelago within the boundaries set forth in the treaties and convention mentioned in Section | hereof comprise the territorial sea of the Philippines.” The treaties and convention referred to were those found in Article | of the 1935 Constitution. This proposed provision represented the official position espoused by the Philippines in international conventions and it is found in Republic Act No. 3046 (1961) and Republic Act No. 5446 (1968). What, then, was the extent of the territorial waters claimed by the 1973 Constitution which antedated the 1982 Law of the Sea? The final draft, unlike the first two drafts, simply claimed jurisdiction over “the territorial waters,” without making explicit the extent of the area claimed. It must also be pointed out that the Convention was aware that this claim, which extended Philippine territorial waters beyond the old three mile rule, was something which had yet to be accepted in inter- national circles. In his sponsorship speech delivered on February II, 1972, Delegate Quintero reminded the delegates that no accord had yet been reached on the breadth of the territorial sea and that the Philip- pine government was preparing for an international conference on the law of the sea in 1973 where “every effort will be exerted to get accord on the breadth of the territorial sea.”* The hope, however, was also Saronga ano Yar, Pustic Inrenvariovat Lav 158-9 (1966), R.A. No. 3046 and R.A. No. ‘5446 draw straight baselines around the Philippines. “MQuintero added thatthe average breadth of tertoril sea claimed by Republic Act 3046 js only 115 miles. “The Republi ofthe Philippines believes that this is reasonable considering that ‘South American countries have declared thet territorial seas to be 200 miles. .. And the United States which wants the adoption ofthe territorial seas only six miles wide has established in the Pacific Ocean the so-called safety identification zone. They have sectored 1,400 miles and they can sop any traffic" They can control these aircrafts to identify itself and be subject to penalty if it does not [sc}.” Speech, Session of February 11, 1972. Scanned with CamScannerSec. i ‘THE 1987 CONSTIT CONES OFTHE REPUBLIC OF THE PH in the Anglo- Partly strengthened by the decision of the Sin beatin method Norwegian Fisheries Case” which upheld te] S 4 by Norway. So indeed of fixing the territorial sca as unilaterally adopted by the LOS would do in 1982. Internal waters; the Archipelagic Principle Both the first and the second draft of the 1973 article on national territory contained the following provision: “All the waters around, between and connecting the various islands of the Philippine archi- Pelago, irrespective of their widths and dimensions, are necessary ap- Purfenances of the land territory, forming part of the inland or internal waters of the Philippines.” An abbreviated version appeared in the final draft: “The waters around, between and connecting the islands of the archipelago, irrespective of their breadth and dimensions, form part of the internal waters of the Philippines.” This assertion, together with the “straight base line method,” form the “Archipelagic Principle.” The significance of this assertion lies in the meaning of “internal waters.” Internal or inland waters consist of all parts of the sea land- wards from the baseline as well as inland rivers and lakes. All of them are subject to the sovereignty of the state to the same extent that the land domain is. Unlike territorial waters, they are not subject to the right of innocent passage by other states, ¢ This assertion over internal waters was statement of an aspect of the archipelagic principle which the Philippines, along with Indonesia, had been espousing in international conferences. As early as 1955, the Philippines projected this concept in a note verbale to the Secretary General of the United Nations in the following language: All waters around, between and connecting different islands belonging to the Philippine archipelago, irrespective of their width or dimension, are necessary appurtenances of the land territory, forming an integral part of the national or inland waters, subject to the exclusive sovereignty of the Philippines, This concept, on June 17, 1961, was embodied in Republic Act No. 3046 whence it found its way into the 1973 Constitution in the "CJ. Reports (1951) 130, The argument from his case is by analogy and, therefore, only as strong as the analogy. See Committee Report No. O1 and Speech of Delegate Laggui, Session of February 14, 1972, Scanned with CamScannersec. 1 19 ART. I — THE NATIONAL TERRITORY hope that it would eventually gain international acceptance. Commit tee Report No. 01 of 1973 said: “The inclusion in the new Constitution of a provision spelling out the archipelagic principle of the Philippine Government will certainly strengthen our historical position and will help us in sustaining our archipelagic theory in the Convention on the Law of the Sea in 1973 and in any case that may possibly be ventilated before the World Court in the future.” _The significance of this assertion on the extent of internal wa- ters is that large bodies of water connecting the islands of the archi- pelago — the Sibuyan Sea, the Mindanao Sea, the Sulu Sea — would be considered by the Philippines in the same light as rivers and lakes found within the islands themselves. It should be noted, however, that this assertion was envisioned to apply only to the waters connecting the islands of the archipelago proper. It was not meant to apply to the waters between the archipelago and “other territories belonging to the Philippines.” “... the air space, the sub-soil, the sea-bed, the insular shelves and the other submarine areas.” The first draft of the 1973 article contained the following provi- sions: Section 5. The sovereignty of the Philippines also extends to the air space over its land territory and its te rial sea as well as to its bed and sub-soil. Section 6. The extent of the control that the Philippines ex- excises in the contiguous zone and the superjacent waters of the continental shelf shall be determined by law. ‘The second draft came out thus: Section 4. The sovereignty of the Philippines also extends over the air space above its land areas, its internal waters and ter- ritorial seas as well as to its sea-bed and sub-soil. sveen Delegate Quintero and Delegate Felixberto Serrano (Batangas), Session of February 17, 1972. Serano said that ifthe intemal waters include the “waters around” the islends “irrespective of their breadth and dimensions”, these waters would extend outward indefinitely in all directions. Quintero answered that reference is merely to connecting waters. The imperfection ofthe text, however, lends validity to Serrano's reading, ridiculous though it may be *See exchange bet Scanned with CamScannerrt See. 1 . ‘THE 1987 CONSTITUTION rE PHILIPPINES. OF THE REPUBLIC OF THE PHILIPPIN! define the control Section 5. The National Assembly sall define the control that the Philippines will exercise in the atl Is 2 Superjacent waters of the continental shelf. Commenting on Section 4 of the second draft, connie pevan No. 02 said that the provision on airspace was based on the pro} isons Of Articles 1 and 2 of the Convention on International Civil Aviation adopted in Chicago in 1944, The Convention entered into force in 1974, Thus, the present regime on air navigation has developed from the Chi- £480 Convention on International Civil Aviation (1944) which entered into force in 1974, Articles 1 to 4 of the Convention set down the gov- ering principles: Article 1. Sovereignty The contracting States recognize that every State has com- Plete and exclusive sovereignty over the airspace above its terri- tory,” Article 2. Territory For the purposes of this Convention the territory of a State Shall be deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State. ‘The assertion under air space law was that sovereignty extended ‘oan unlimited extent, usque ad coelum. The development of the law on Outer space modified this assertion. Sovereignty over air space extends only until where outer space begins. But where is that? / There is as yet no definite answer to that question. The answer will eventually come from technological capabilities of conventional aircraft to reach greater heights. Different numbers ranging from fifty to one hundred miles from the earth have been mentioned, The provisions on the sea-bed and sub-soil were based on Article 2, Section 1 of the Convention on the Territorial Sea and Contiguous Zone adopted in Geneva in 1958. Commenting on Section 5, Committee Report No, 02 said: The Convention on the Territorial Sea and the Contiguous Zone adopted by the Geneva Conference of 1958 allows a coastal Scanned with CamScannersec.1 ART. — THE NATIONAL TERRITORY 2 state t C1 a vant of thet ine come Control over the contiguous zone, whichis adopted by ea seas. The Convention on the Continental Shelf to exercise gre a Conference in 1958 allows a coastal state purposes. The T the continental shelf sovereign rights for certain contiguous — which the Philippines should exercise in the shelf is the ee and in the superjacent waters of the continental ippine Gov Subject of study by the technical bureaus of the Phil- ine Government. Under the circumstances, the Committee on National Territory believes that the matter ofthe extent of the con trol the Philippine Government should have in the contiguous zone and in the continental shelf may be left to the National Assembly for future decision, It will be noted therefore that, while sovereignty is claimed over the air space, sub-soil, sea-bed, the insular or continental shelves and other submarine areas, the physical extent of these areas and the degree of control claimed over these areas were left undefined. This indeter- minate stance was preserved in the final 1973 version which simply claimed “the air space, the sub-soil, the sea-bed, the insular shelves other submarine areas” as part of Philippine territory. Determination, in other words, was left to other modes than by constitutional precept." 982 Convention on the Law of the Sea (LOS)” The 1987 Constitution was formulated while the Philippines was already a party to the 1982 Convention on the Law of the Sea. The dis- cussion of the 1982 Convention was not very thorough. However, since the Convention has substantial provisions which help in the understand- ing of the constitutional text, it is best to treat these before going on to the 1987 version. Some important concepts found in the Convention are archipelago, archipelagic state, archipelagic wears, baseline, Delegate Justiniano Hermoso (Bulacan, 2nd district has a ong disquistion on airspace in international law and on the continental shelf, Session of February 12, 1972. See also the ex- changes on the continental self between Delegates Azcuna and Quintero, Session of February 14, 1972, and on air space between Delegates Hermoso and Rebeck Espiritu (Nueva Ecija), Session of February 17, 1972. The all embracing character of “other submarine areas” is discussed in the exchange among Delegates Serrano, Quintero, and Emmanuel Santos (Nueva Ecija), Session of February 17, 1972. “Done at Montego Bay, Jamaica, December 10, 1982, Sixty parties are necessary for the ‘Convention to come into force. As of November 1990, forty-four had become parties. Scanned with CamScannerSee. SrTUTION TIL 1987 CONSTITUTION | OF THE REPUBLIC OF THE PHILIPPINES fate Archipelago, archipelagi nition of an archipclagic stat The Convention contains a def i install rchipelag icle 46 says: which the Philippines is, and an archipelago. Article 46 say: For the purpose of this Conventic rare” means a State constituted whol- (®) “Archipelagic : clude other islands; ly by one or more archip lagos and may (b) “Archipelago” means a group of islands, including Parts of islands, interconnecting waters and other natural features \which are so closely interrelated that such islands, waters and oth- er natural features form. an intrinsic geographical, econom Political entity, or which historically have been regarded as It may be noted that under the above definition of an archipelago Batanes should be considered part of the archipelago and not just of other territories outside the archipelago. This conclusion has implica- tions for the application of the archipelagic principle with reference to the waters between Batanes and other islands of the territory which will be discussed below. The territorial sea, ‘The territorial sea of a state, as distinct from its inland and internal Waters, consists of a marginal belt of maritime waters adjacent to the base lines extending twelve nautical miles outward. Outside the territo- rial sea are the high seas. The traditional length of the territorial Waters measured seawards, according to the cannon-shot rule formulated in 1702, was three miles, the effective range of 18th century defensive shore batteries. The three mile rule has now been discarded in favor of the twelve-mile rule now found in Article 3 of the 1982 Convention on the Law of the Sea. Where, however, the application of the twelve-mile rule to neigh- boring littoral states would result in overlapping, the rule now estab- lished is that the dividing line is a median line equidistant from the op- posite baselines. But the equidistance rule does not apply where historic title or other special circumstances require a different measurement” “article 15, 1982 LOS. Scanned with CamScannerSee. 1 ART. 1 — THE NATIONAL TERRITORY - Baselines To understand the extent of the territorial sea one must begin with an understanding of clines, The bascline is “the low-water line along the coast as marked on large scale charts officially recognized by the coastal Sate." The width of the territorial sea is measured from the baseline, __There are two ways of drawing the-baselige. The “normal” base- line is one drawn following “thé low-water line alpng the coast as marked on large-scale charts officially r ‘by the coastal State.” This Tine follows the sinuosities of the coast and therefore would normally not consist of straight lines. There is no fixed norm for determining the “low water mark” but the Anglo-Norwegian Fisheries Case™ suggested that “for the purpose of measuring the breadth of the territorial sea, it is the Jow-water mark as opposed to the high-water mark, or the mean between the two tides, which has generally been adopted in the practice of States, This criterion is the most favorable to the coastal State and clearly shows the character of territorial waters as appurtenant to the land territory.” Archipelagic States, however, instead of drawing “normal base~ lines,” have drawn “straight baselines.” Instead of following the sinu- osities of the coast, ssaight line are drawn connecting selected points on the coast without appreciable departure from the general shape 0} © coast. This method of drawing lines was first upheld in the Anglo- Norwegian Fisheries Case. The case upheld the validity of the straight baseline unilaterally adopted by Norway. Likewise, R.A. No. 3046 and R.A. No. 5446 have drawn “straight baselines” around the Philippines. ‘The decision in the Fisheries Case upholding the “straight base- line method” eventually became part of convention law. through Article 7(1) of the Convention on the Law of the Sea. The rule now is that in localities where the coastline is deeply indented and cut into, or if there is.a fringe of islands along the coast in its immediate vicinity, the meth- d of straight baselines joining appropriate points may be employed Section 5, 182.LOS Antcle 5, Law of the Sea. U.K. v, Norway IC} 1951. 271951 ICI 116, 128. Scanned with CamScanner™ THE 1987 CONSTITUTION See. OP THE REPURLIC OF THE PHILIPPINES in drawing the baseline from which the br measured.” th of the territorial sea is The provision on baselines found in Article 47 of the 1982 Con- Vention are the following 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 nauti- cal miles, except that up to 3 per cent of the total number of base- lines 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 archipela- £0. 4. Such baselines shall not be drawn to and from low- tide clevations, unless lighthouses or similar installations which are permanently above sea level have been built on them or where a low-tide elevation is situated wholly or partially at a distance not exceeding the breadth of the territorial sea of another State, 5. _ The system of such baselines shall not be applied to an archipelagic State in such a manner as to cut-off from the high seas or the exclusive economic zone the territorial sea of another State. 6. Ifa part of the archipelagic waters of an archipelagic State lies between two parts of an immediately adjacent neighbor- ing State, existing rights and all other legitimate interests which the latter State has traditionally exercised in such waters and all rights stipulated by agreement between those States shall continue and be respected. 7. For the purpose of computing the ratio of water t land under paragraph 1, lund areas may include waters lying within the fringing reefs of islands and atolls, including that part of a steep- sided oceanic plateau which is enclosed or nearly enclosed by a Sea Convention. Scanned with CamScannerART THE NATIONAL TERRITORY * chain of limestone isty i i oe iene islands and drying reefs Lying on the perimeter 8. The baselines d shall be shown on charts of ing theit posi vn in accordance with this article ale or seales adequate for ascertain- \ ion. Alternatively, lists of geographical co-ordinates of points, specifying the geodetic datum, may be substituted. 9. : __ The archipelagie State shall give due publicity to sueh charts or lists of geographical co-ordinates and shall deposit a copy of each such chart or list with the Secretary- i jeneral of the United Nations. Article 47 is both a solution and a problem. Two observations intimately interconnected need to be made. First, paragraph | affirms the use of “straight baselines” as practiced by the Philippines. How- ever, paragraph 2 prescribes that “straight baselines” may not exceed a maximum of 125 nautical miles. Some of the lines drawn by Republic Act No. 3046 and Republic Act No. 5446 extend beyond 125 nautical A miles.” At the time of the publication of this edition of the Commentary, Congress was in the process of re-drafting the baselines in order to con- form to the requirement of the Convention on the Law of the Sea and to deal with the territorial disputes over areas claimed by the Philippines. Sovereignty over territorial waters Astate exercises sovereignty over its territorial sea subject to the right of innocent passage by other States. Thnocent passage is under- stood as passage not prejudicial to the interests of the coastal state nor contrary to recognized principles of international law. Article 19(2) enumerates acts that are not considered innocent passage thus: 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, ter~ ritorial integrity or political independence of the coastal State, or See Cogan, Devetorwenr oF Ts ARciuretacic Docrune as a Recounize PRINcirue oF Ivrenwariona. Law, 58 PHIL. LJ. 13, 26 (1983) Scanned with CamScanners THE 1987 CONSTITUTION See. OF THE REPUBLIC OF THE PHILIPPINES in any other manner in violation of the principles of international Jaw embodied in the ions; (b) any exercise or practice with weapons of any kind; (©) any act aimed at collecting information to the preju- dice of the defense or security of the coastal State; (@) any act of propaganda aimed at affecting the defense OF security of the coastal State; (©) _ the launching, landing or taking on board of any air- craft; (the launching, landing or taking on board of any mili- tary device; (2) _the loading or unloading of any commodity, currency OF Person contrary to the customs, fiscal, immigration or sanitary Jaws and regulations of the coastal State; (h) an ' act of willful and serious pollution contrary to this Convention; (any fishing activites; @) the carrying out of research or survey activities; Dy (K) any act aimed at interfering with any systems of com- munication or any other facilities or installations of the coastal State; © any other activity not having a direct bearing on pas- sage. Coastal states have the unilateral right to verify the innocent char- acter of passage, and it may take the necessary steps to prevent passage that it determines to be not innocent. Archipelagic waters Article I of the 1973 Constitution said: “The Waters around, between and connecting the islands of the archipelago, irrespective of their breadth and dimensions, form part of the internal waters of the Philippines.” This assertion, together with the “Straight base line method,” form the “Archipelagic Principle.” This now also found in the 1987 Constitution. The significance of this assertion lies in the meaning of “internal waters.” [nternal or inland waters consist of all parts of the sea land- - Scanned with CamScannerSee. ART. | — THE NATIONAL TERRITORY a wards from the baseline a is Well as inland rivers and lakes. All of them i are subject to the sovereignty of the state to the same extent that the land x domain is. Unlike x innocent passage by other stat itorial waters, they are not subject to the right of _ Article 8(2) the 1982 Convention, however, says: “Where the es~ tablishment of a straight baseline in accordance with the method set \ forth in Article 7 has the effect of enclosing as internal waters areas vi which had not previously beenGonsidered as such, a right of innocent Passage as provided inthis Convention shall exist in those waters.” Ar ticle 53 of the Convention refers to this type of internal water as “ar- Vv chipelagic waters” and says that “[a]n archipelagic State may designate U __ sea lanes and air routes thereabove, suitable for the continuous and ex- | peditious passage of foreign ships and aircraft through or over its archi | pelagic waters and te adjacent teritorial sca.” In effect, therefore, the~_)¢{ | Law Of the Sea provisi a right of innocent passage a _/ waters which the Philippine Constitution considers as internal. : Aware of this possible conflict, the Philippine government, in sign- ing the Law of the Sea Convention, made the following reservation: 1. The signing of the Convention by the Government of the Republic of the Philippines shall not in any manner impair or prejudice the sovereign rights of the Republic of the Philippines ‘under and arising from the Constitution of the Philippines; 2. Such signing shall not in any manner affect the sover- eign rights of the Republic of the Philippines as successor to the United States of America, under and arising out of the Treaty of Paris between Spain and the United States of America of Decem- . ber 10, 1988, and the Treaty of Washington between the United States of America and Great Britain of January 2, 1930; 3. Such signing shall not diminish or in any manner af- fect the rights and obligations of the Contracting Parties under the Mutual Defense Treaty between the Philippines and the United States of America of August 30, 1951, and its related interpretative instruments; nor those under any pertinent bilateral or multilateral treaty or agreement to which the Philippines is a party; “UN Office for Oceans Affairs and the Law of the Sea, Law of the Sea Bulletin, Special Issue 1, March 1987, Annex II, p.6, quoted in Sweeney, Ouivex, Leecut, THe Ivrennantovat SvsteM 193 Grd Ed. 1988). Scanned with CamScannerSec. 1 E1987 CONSTITUTION UBLIC OF THE PHILIPPINES, nax XXX XXX 6. ‘The provisions of the Convention on archipelagic ie sage through sea lanes do not nullify or impair the sovereignty of an archipelagic State over the sea lanes and do not deprive it of authority to enact legislation to protect its sover- cignty, independence, and security; 7. ‘The concept of archipelagic waters is similar to the concept of internal waters under the Constitution of the Philip- Pines, and removes straits connecting these waters with the eco- nomic Zone or high sea from the rights of foreign vessels to transit Passage for international navigation; The reservation, however, may be seen as merely ad cautelam. The claim made in the Constitution took effect in 1973 before the 1982 ' Law of the Sea Convention was formulated. Article 8(2) of the Conven- | tion itself says that the new rule on archipelagic waters applies only to wie had not previously been considered as” internal waters. | sular shelf The continental shelf, archi 80S, refers to (a) the seabed and subsoil of to the coastal state(but outside the territorial sea> dred meters or, beyond that limit, to where ti and (b) the seabed and subsoil state has the right to explore ai installations needed, and to e pelagic or insular shelf for archipela- _) the submarine areas adjacent. 9“. a depth of two hun- the depth allows exploitation, I of areas adjacent to islands. The coastal ind exploit its natural Tesources, to erect 6. National Territory in the 1987 Constitution, On June 26, 1986, The Committee on Preamble, National Ter- ritory and Declaration of Principles presented the following draft on National Territory: The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other ter. Titories belonging to the Philippines by historic right or legal ttle, including the territorial sea, the air space, the subsoil, the sea-bed, Scanned with CamScannerSec. ART, — THE NATIONAL’ TERRITORY » Patina, and the other submarine areas over which the teem and es Sovereignty o jurisdiction. The waters around, be- Seana ne Connecting the islands of the archipelago, respective ir breadth and dimensions, form part of the internal waters , of the Philippines, . . " YY | tena Sovereignty or jurisdiction of the Philippines shall also ex- ia tend to straits connecting these waters with the economic zone pro- ‘vided for in the Convention on the Law of the Sea. It will be noted that the first paragraph was an exact reproduction of the 1973 text. The second paragraph was new and made reference to the 1982 Convention of the Law of the Sea. ___ The concept and territorial space embodied in the phrase “Phil- ippine Archipelago” has been left untouched by the 1987 text. The deliberations of the 1986 Constitutional Commission focused on: (1) whether to have a provision on national territory; (2) what posture to take relative to Sabah as covered by the clause “all other territories be- long to the Philippines by historic right or legal title”; and (3) how the definition of territory would relate to the 1982 Convention on the Law of the Sea. The first issue, which came almost as a side issue, was resolved easily enough. Much of the 1972 debate on whether to have an article on national territory at all was repeated in the 1986 Constitutional Com- mission. In the end there was recognition of the fact that such an article would have an educational value and there was apprehension that it would be difficult to explain why after the 1935 and 1973 provisions on national territory the new Constitution should fail to provide for one." The second issue was debated per longum et latum with a certain degree of warmth even if it was not always clear what individual dele- gates, including the sponsor, wanted. The second was not so thoroughly discussed, and nothing conclusive was put down in writing. Both of these, however, need some discussion. “TRECORD 306-312; Jounal of July 2, 1986. Scanned with CamScanner187 CONSTITUTION Sec. 1 6 PHILIPPINES @, “all other territories over which the Philippines has sover- eignty or jurisdiction.” In the 1986 Constitution, 1973's “all other territories belonging to the Philippines by historic right or Jegal1itle” gave way to “all other territories over which the Philippines has sovereignty or jurisdiction.’ The debates on the subject were prolonged and emotionally intense but easily summarized.” Those who proposed to retain the 1973 phraseol- ogy basically wanted to avoid the impression of constitutional abandon- ment of the Philippine claim to Sabah. Those who espoused the new Phraseology, however, contended that as worded the new phraseology, while prescinding from any international claim, did not mean abandon- ment of any claim which might be justifiable under generally accepted Principles of international law to which the nation subscribes. The original phraseology proposed as substitute for the 1974 ver- sion read thus: “. . . and all other territories over which the government exercises sovereign jurisdiction.” After much debate and explaining that the phrase was not an abandonment of any unsettled Philippine claim, the proposal was approved on second reading by a nominal vote margin of 24-9. When the matter came up for third reading, however, on the night of July 9, 1986, the resulting vote was 22-11, short of the Fequired majority of all the members of the Commission, The principal stumbling block to final approval, articulated by Commissioner Roberto Concepcion, was the phrase “exercises sover- eign jurisdiction.” It was argued that the phrase could easily be read to mean that territory not under the effective control of the Philippines, such as Sabah, would not be part of the Philippines. Because of this argument, and with the help of the suspension of rules, the matter was reopened on July 10, 1986, for the sole purpose of returning to sec. Ond reading situation in order to introduce a very specific rephrasing. Father Joaquin Bernas, formulator and sponsor of the original amend. ment, introduced the new phraseology: “and all other territories over which the Philippines has sovereignty or jurisdiction.” It w: that the word “has” was of broader scope than “exer so that it clearly allowed juridical retention of a territory even when it was physi- cally wrested by a stronger force. The phrase was explained to import “See Journals of July 3,7,9, and 10, 1986; I RECORD 320-332, 412-419, 424-429, Scanned with CamScannerSee. 1 . ‘ART. | — THE NATIONAL TERRITORY 3 a durative s . ini pines then ae that is, it included any territory over which the Philip- MC Sovereignty or ju ion, even if such territory should. temporarily be cont f Ger Which he Pipes might cause a icion eee ie ere i not abandon any claim to Sabah or international re " let tall such matters to determination through fori sses, The intent was to more effectively allay the lose who saw the abandonment of the 1973 language as an abandonment of the Sabah claim since the Philippines did not actually exercise jurisdiction over Sabah. The 1973 phraseology had acquired a historic meaning as embodying a claim to Sabah which, while harming diplomatic relations with Malaysia, did not add any more force to the Philippine claim. The new phraseology had the advantage of avoiding a phraseology which was offensive to Malaysia while not foreclosing any claim to Sabah. Moreover, it was meant to take care of a situation where an invading force might take away from the Philippines tempo- rary control over all or a portion of its territory. Even with such explanations, however, there were some firm hold-outs. When the change was put to a vote, the result was 38 in favor and 2 against. c.“sseits terrestrial, fluvial, and aerial domains, including the territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas thereof.” This rephrasing was authored by Commissioner Adolfo Azcuna in order to introduce a logical sequencing and a summary of thé elements that make up the Philippine territory. It was not meant to and does not add anything to the substance of what was already contained in the 1973 definition. Azcuna elaborated on it thus:* The esi [comin includes all surfaces of land above the sea th: long to the Philippines ‘These are the ones included lines of the archipelag within the — “2On subsequent second reading, the vote was 39-3, and on third reading 39-4.1 RECORD 428-429. “See Journal of July 2, 1986; I RECORD 305. Scanned with CamScannerSee. 2 STITUTION THE 1987 CONSTITUT F THE RED F THE PHILIPPINES, (OF THE REPUBLIC OF TH ay é q in i and waters(bays and(riv- °) The(uvial domain includes the inland wat sof the sea, ers, streams, well as internal waters or the tnlerna| Tandwards fi i uselaid m the baselines. ‘The (ial domaii)of the Philippines includes the air direetly above its ieseseareed nit domains, All the air that lies above Our land teritory and our water territory belongs to us all the way Up to outer space where there is no more air... The aerial domain extends up to where outer space begins, directly over our land and Water territories. Then we specify that our national territory includes the ter-_ torial sea, the seabed, the subsoil — again we rearranged the se- uence here, the territorial sea comes first — this is the margin or belt of maritime waters adjacent to our base lines up to the extent of 12 nautical miles. It is a belt surrounding our base Ward. Whether we like it or nof, international Taw imp ritorial seq in every country that has waters. Under the territorial Sea is the|geabed] which also belongs to us. And then the insular shelves or the Continental shelf, meaning the submarine area that is directly under the water Geyongthe territorial sea, up to the edge of the continental margin, regardiess of the depth of the superja- Cent waters, Under international law, the continental shelf; namely, the seabed and subsoil of the submarine area, belongs to us. This includes not only the continental shelf of individual islands but [also] the archipelagic shelves and the other submarine areas over Which the Philippines has sovereignty or jurisdiction — this is true in the old provision. This was intended to cover any other areas that also belong to us, such as the continental slope or the conti- neental margin, over which we have jurisdiction of sovereignty. ... It will be noted that the explanation made by Commissioner Az- cuna follows closely the terms of the 1982 Convention on the Law of the Sea. To begin with, Article 2 of the Convention says: The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. 2. This sovereignty extends to thai spac over the ter- ritorial sea as well as to its bed and subs 3. The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law. Scanned with CamScannerART. | — THE NATIONAL TERRITORY 3 7. Summary and Conclusion. __ Like the 1934-1935 Convention, the 1971 Convention did not claim that a constitutional provision standing by itself is binding in- ternational law. During the 1973 debates on the provision on national territory, the local newspapers played up the intent of the Convention {0 secure the claim to Sabah and the possible claim to the Marianas Islands and Freedom Land. The impression was easily given that, by unilateral act, the Convention was attempting to add new territory to what was defined in the 1935 Constitution. It is clear from a study of Convention records, however, that there was no such attempt. But the 1973 language tended to admit such an interpretation. The 1987 lan- guage attempts to remedy the misimpression. The only clear claim made by the 1971 Convention of the power unilaterally to delimit territorial boundaries was with respect to inland and territorial waters, But even in this, the Convention was merely pur- suing the Republic's existing official policy of pushing for international acceptance of the archipelagic principle. It was a claim therefore which the Convention realized must be submitted to determination by interna~ tional convention. Is the Philippine territory bigger because of the new article on national territory? Not really. The Treaty of Paris is the 1935 Consti- tution’s principal point of reference for the delineation of Philippine territory. Although the 1973 and 1987 Constitutions make no mention of the Treaty of Paris or any other treaty, the Philippine archipelago of the new Constitution is, according to the sponsors of the provision, also the archipelago of the Treaty of Paris. If the present provision ac- complishes anything at all, its omission of any mention of the Treaty of Paris in the new Constitution only succeeds in putting the Philippines in an ambiguous if not embarrassing position. On the one hand, it wishes to be washed clean of the colonial taint of the treaty; on the other hand, it claims the longitude and latitude lines of the treaty as the rightful boundaries of the archipelago and of its territorial waters. ‘The 1973 Constitution affirmed Philippine title to the Batanes Is- lands by “historic right.” But this too was adequately covered by the last clause of Article I of the 1935 Constitution, Under the 1987 Consti- tution, it certainly is covered by the clause “other territories over which the Philippines has sovereignty or jurisdiction.” Moreover, under the Scanned with CamScannerTUTION PHILIPPINES. ™“ ‘THE 1987 CON: : OF THE REPUBLIC OF THE P x ention on definition of an archipelago in Article 46 of the 1982.Co : She the Law of the Sea, the Batanes Islands can be considered pa archipelago. The 1973 Constitution ensured the pos i territories on the basis of “historic right or legal title. dae affirmed what the Republic had been doing under the 1935 one tion. The 1987 version prescinds from the question and relics on ta i erally accepted principles of international law which recognizes legal modes of establishing legal claim to territory. If Sabah, the Marianas, and Freedom Land should eventually be recognized by the world as annexed to the Philippines, it will be in virtue of “historic right or legal title” independent of the 1973 or 1987 Constitution. The extent and degree of control over territorial waters, internal v areas cannot, in our modern world, be determined with finality by a uni- lateral fiat. Of this the 1971 Convention was well aware when it enacted the new provision. So was the 1986 Constitutional Commission. How- ever, to the extent that the provisions of Article 47 of the 1982 Conven- tion on the Law of the Sea might conflict with Philippine constitutional law and rights based on treaties, such provisions are repudiated. What then did the 1973 provision gain for the Philippines? A se- curity blanket, a rhetorical assertion of historic identity, “decolonializa- tion” on paper, and an embarrassing muddling of Philippine position towards the Treaty of Paris. As to the 1987 version, it merely removed language possibly of- fensive to an ASEAN neighbor and achieved a more logical sequencing of the elements that make up the territory but preserved everything else found in the 1973 Constitution. Scanned with CamScanner