SCRIPT ON FB DISCUSSION

Atty: Destura on Concept of the State

OK, when we speak of the state, we refer to a community of person more or less
numerous and then this person occupying fix portion of a territory, ah independent of
external control and possesses a government that provides a relationship between the state
and the people.
The state is a legal concept, and sometimes we cannot prevent it from comparing it
from nation. Sometimes we call it a nation, and sometimes we call it a state, but ah the two are
not actually the same.
When we talk about the state, it is a legal concept. Whereas, When we talk about
nation, it is more on ethnic concept, so, like for example ah, No,
By the definition of nation, it is more of ah ey a groupation of people that have
relationship with respect to customs or tradition or some beliefs or with respect to a race, ok,
so that is why, we have ey, we have the arab nation, ah ey ah a groupation of people, more or
less a believer of Allah

People:
- Under the definition, it must be numerous, so that the people can survive and
defend the state
- It must be both male and female for the purpose of procreation
- How can a state support and defend itself if it cannot expand and has no capacity of
procreation.
Territory
- Definite portion of a territory
- State cannot be a floating territory
Government
- It is important that the will of the state must be materialized.
- It implements what the state want to be implemented
- Government is not a state
Sovereignty
- Power of the state to manage its internal affairs without any influence from the
inside
- The state has sovereignty if it can manage itself
Recognition (Optional)
- Recognition by the other state, that this particular state has already acquired the
elements of the state

Doctrine of Continuity
- These elements must always be present; lacking any of the 4 elements would cause
extinction of the state.
- These must be all present
“However, it doesn’t mean that a mere change will not cause the extinction of the state, in
particular.
The change of government will not affect the state, because it does not cause the
removal of the government. The mere change will still have no effect in the continuity of the
state, the state will still be state, even if before it was the Aquino government and then Estrada
Government, and there is Duterte government.
The change in the government will not cause the extinction of the state.

Same with the sovereignty

Ex. There is a war, and sovereignty is change from Spain to United States and US to Philippine
Sovereignty.
Despite the changes of Sovereignty, the Republic of the Philippines still a republic of the
Philippines inspite the change of sovereignty .
However, it will have the effect of changing laws, existing laws in Ph, in case of change of
sovereignty,
In the case of US and Japan, all political laws are automatically abrogated.

In the Case of Macariola vs Assuncion, laws that were enacted by the Spanish was deemed
abrogated at the time of US sovereignty.

“The state continue to exist despite any change in the condition of the 4 elements as long as all
the elements are present.

(North Cotabato vs GRP 2008)

- It involves, a memorandum of agreement entered into the Government of PH and
the Bangsamoro group (BJE)
- In 2008, there was a talk between Bangsamoro and Ph, after, they came up with
memorandum of agreement.
- Bangsamoro, are the people in Mindanao.
- A petition was filed, asking the government to show to the people the Memo of
Agreement that was entered between the two
- The Petitioner would like to move for the declaration of unconstitutionality of the
memo of agreement entered between the two groups.
o Memorandum of Agreement on Ancestral Domain
- Why is this case important,
o This is a classic example where the SC discuss the 4 elements of the state.
- When the SC decided the case, it was declared the MOA-AD as unconstitutional
- The SC found out, that once the agreement was approved, that would constitute the
Bangsamoro area as 1 territory,
o Have its own government
o Its own internal control and internal waters (15 km)
o Its own territory in part of Palawan and Mindanao
o It can now have a relationship with other state including our Government
 o That agreement partakes, that Bangsamoro is already another state within
the state of the Philippines.
Associated
There comes the Principle of Association, that the Bangsamoro would be associated to
the PH and because of that, the SC said, No, the constitution does not recognize association or
simply coming up with another State within the State.
Because there is only one Republic of the Philippines, or the Archipelago that possesses
all the Filipino people and has exercise sovereignty against outside control.

It was declared unconstitutional, because the agreement already provided the 4 elements of
the state which is not allowed under the present constitution.

TERRITORY (MAIN TOPIC)

Art. 1 of Constitution
“The National Territory comprises the Philippines Archipelago, with all the island
embrace therein, and all other territories over which the Philippines has jurisdiction and
sovereignty, these includes terrestrial, fluvial, areal domain, and the seabed, subsoil, shelves
and the waters around between, regardless of their breadth and dimension form part the
internal waters of the land.

There are 2 things to know

1. Archipelago – the Islands from Luzon to Mindanao
2. Other territories over which the Philippines has Sovereignty or Jurisdiction
a. Jurisdiction which means that either these territories were acquired by virtue of
treaties or by virtue of positive act or declaration claiming that as our territory.
i. Treaty of Paris- between Spain and US
1. After the war, part of the settlement was to give the Philippines to
the US. And it is incorporated in the constitution as our virtue of
sovereign rights
ii. Great Britain and US
1. Mangsi Island was also included
iii. Marcos passed a law, declaring several territories outside the archipelago
as part of our territories.
1. Kalayaan Group of Island and Scarborough Shoal
iv. Declaration from UN, UNCLOS, United Nation Convention on Law of the
Sea
1. Provides on how we are going to measure the territorial seas,
contiguous zone and economic zone,
These are the historical events that are incorporated on the definition of National Territory.

The Ultimate Lines of Definition

“The waters around, between and connecting the islands regardless of their breadth or
dimension form part of the internal waters of the land”
Question:
Archipelagic Doctrine
- International Law doctrine which was adopted by the UN
- Sponsored by the UNCLOS
- PH is the author of the Doctrine
Ans:
Means, a simply the last sentence of the national territory, that the waters around
and between connecting, the whole archipelago is considered internal waters.

Refer to the illustration:

The red line is baseline of the country.
What is the significance of the baseline and archipelagic doctrine?
- It is the method, baseline method, by which we connect from the outermost portion
of island to the next, we connect a line, connecting all outermost island of the
archipelago. (refer to the illustration)
- By virtue of the baseline method, you made the whole PH as one landmass, as 1
integral unit, and all the waters inside that line are considered as internal waters.
- Even if there is a vast water in Palawan and Cebu, that is considered internal
waters.

-
Purpose/Wisdom:
- To preserve the integrity of archipelagic nation, nation that has many island. Why? If
we don’t use the doctrine, any foreign ships or airplane can just cross our territory.
- Take note that our territory is composed of land, waters and rivers, fluvial, waters,
maritime, land terrestrial, and aerial.
Method of Measuring
1. Baseline method applying the archipelagic Doctrine

So, in consonance with the requirement of UNCLOS, then, if your going to analyze the
illustration. The Territory of the Philippines, insofar as the water is concern, actually extends
not on the shoreline, but it starts on the baseline.

On the left portion, archipelagic water, next is territorial waters, next is contiguous zone, next
continental shelf and high seas.
This is very important, our position insofar as territory is concern.

2 kinds of water within our territorial jurisdiction,

a. Archipelagic waters – all waters within the baseline, whatever the size may be.
b. Territorial waters – outside the baseline,
 a. start counting 12 nautical miles (territorial sea) ex. When you commit a crime
on the 12 nautical miles, you will be held liable in the Philippines. The
criminal jurisdiction extends only up to 12 nautical miles. If the crime was
committed outside 12 nautical miles, then there is no more criminal
jurisdiction.
b. There is also an extension, of another 12 nautical miles, contiguous zone.
The jurisdiction of the Philippines, extends up to contiguous zone but it is
limited. In the 12 nautical miles, it is absolute.
Ex. Acts in violation of customs law, sanitation law, fishery laws, immigration
law if committed in contiguous zone, your still liable in the PH. But beyond that,
there is no more jurisdiction.

c. From the baseline, count 200 nautical miles, from contiguous zone, another 200
nautical miles is exclusive economic zone (EEZ) being enjoyed by the Philippines
under the UNCLOS.
- West Philippine Sea dispute
o Under the convention, we are entitled to a 12 nautical miles from the
contiguous zone for the purpose of utilizing or exploring our natural
resources.
o Whatever is down of the 200 NM, it is owned by the Philippines.
o “Economic” Not Criminal. Exclusive on economic rights underneath the seas.
- Our national territories extends from the continental shelves (pababa na lupa)
(UNCLOS picture) madaming natural resources and etc. oil and minerals.
- Lots of exploration can be done
- But being an economic zone,
it does not mean that we
cannot allow other state to
pass by the ocean, they can
still pass, because its their
economic rights.
- After the 200, The Next is
High Seas – can be used by
anyone
-
Refer to illustration

Take note: the measurement of the 12

The red
nautical line
miles is is
notarchipelagic
measured in the
doctrine.
shoreline. It is measured from the
Start counting
baselines. You can to start
the greenline,
measuring the
that is the exclusive
12 nautical in the middle economic
of the sea.
zone,
Because that is the line, from 1 island to
another island. So, that’s why, you count the 12 nautical miles from the baseline, and from
there your proceed to contiguous zone to EEZ.

Magallona vs Ermita
- In this case, the SC apply UNCLOS, on our claim under Art 1 of the Constitution
Facts:
- Petition from the UP college of law and prof. questioning now the law that was
passed by the Congress, providing the delimitation of the national territory of the
country, applying the UNCLOS.
- RA 9522 on two principal grounds, namely:
(1) RA 9522 reduces Philippine maritime territory, and logically, the reach of the Philippine
state’s sovereign power, in violation of Article 1 of the 1987 Constitution,10 embodying the terms
of the Treaty of Paris11 and ancillary treaties,12 and (2) RA 9522 opens the country’s waters
landward of the baselines to maritime passage by all vessels and aircrafts, undermining
Philippine sovereignty and national security, contravening the country’s nuclear-free policy, and
damaging marine resources, in violation of relevant constitutional provisions.

Atty: - as you can see (refer to first picture)

According to the petitioner, by putting the archipelagic doctrine, we went away further
from the treaty that was passed between the spain and US. And because of that, the petitioner
filed a case.

SC: the law was not a violation of the constitution, because it did not practically lost of the
territory. In providing for that demarcation to that line (Rectangle) the PH was only following
what the UNCLOS actually agreed upon. So following the international principle “Pacta Sund
Servanda” (each party must agree and then respect what they agreed upon in a treaty) UNCLOS
is a treaty, the PH as a signatory has to comply the requirements of the treaty and that is to
measure down the territory of the PH.
Under that agreement, it was agreed that the line should not exceed 100 nautical miles. That’s
why (see illustration) no line exceed 100 nautical miles.
That’s the reason why the Scarborough Shoal, was not connected to the main line, because to
connect that would be beyond 100 nautical miles, same as the Kalayaan Group of Island.

- That’s the reason why the Petitioner filed and question the validity of the Law. But
the SC alleged that, there is no violation because the government of the PH is just
complying with the requirements of the UNCLOS which is to measure the
archipelago. At with respect to the Kalayaan and Scarborough, the SC held that they
are not abandoned, because the country had already made a claim on that as part of
the national territory over which the country has jurisdiction and sovereignty.
- Besides, according to SC, these groups of island, will also have their own territorial
zone or jurisdiction.
- That is the reason why the petition questioning the validity of the law was dismissed.
- (that is now the present picture of the national territory)
But there is one recent claim that will eventually be added to the Ph. The PH in 2009 had also
made a claim on Benham Rise, which is on the adjacent to the island of Luzon. A combination of
Luzon and Samar, a good source of natural resources, and could be considered as part of the
Philippine Territory. The UN approved the claim on Benham Rise. (good source of oil)

Where are conflicts between two states who has also their own maritime zone, there is a
possibility of overlapping between the 2 countries.
How are going to solve that?
- In case of overlapping as far as economic zone is concern, that is subject to a treaty
between the 2 states. Depending on the treaty on how the 2 states will now exercise
joint ownership over the natural resources within their EEZ.