B. National territory

Frequency: ★★☆☆☆

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

Article I, 1987 Constitution

1. Composition

The 1987 Constitution defines the “national territory” to include not only islands or rocks above water at high tide but also the seabed, subsoil and other submarine areas “over which the Philippines has sovereignty or jurisdiction.” (J. Carpio, Concurring Opinion in Saguisag v. Executive Secretary, En Banc, G.R. Nos. 212426 and 212444, 12 January 2016)

The Philippine “national territory” refers to areas over which the Philippines has “sovereignty or jurisdiction.” The Constitution mandates: “The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.” (J. Carpio, Concurring Opinion in Saguisag v. Executive Secretary, En Banc, G.R. Nos. 212426 and 212444, 12 January 2016)

In short, under international law and in particular under the UNCLOS, the Philippines has jurisdiction over its EEZ and ECS. Thus, under domestic law, the Philippines’ EEZ and ECS form part of Philippine “national territory” since the Constitution defines “national territory” to include areas over which the Philippines has “jurisdiction,” a term which means less than sovereignty. However, under international law, the Philippine “national territory” refers to the areas over which the Philippines has sovereignty, referring to the Philippines’ land territory, archipelagic waters and territorial sea, excluding areas over which the Philippines exercises only jurisdiction like its EEZ and ECS. (J. Carpio, Concurring Opinion in Saguisag v. Executive Secretary, En Banc, G.R. Nos. 212426 and 212444, 12 January 2016)

2. The 2 main groups in national territory

Both the 1973 and 1987 constitutions divide the national territory into two main groups: (1) the Philippine archipelago and (2) other territories belonging to the Philippines. (J. Velasco, Concurring Opinion in Magallona v. Ermita, En Banc, G.R. No. 187167, 16 August 2011)

a. Philippine archipelago

1) Archipelagic principle

As may be noted both the 1973 and 1987 constitutions speak of the “Philippine archipelago,” and, via the last sentence of their respective provisions, assert the country’s adherence to the “archipelagic principle.” (J. Velasco, Concurring Opinion in Magallona v. Ermita, En Banc, G.R. No. 187167, 16 August 2011)

The “Philippine archipelago” of the 1987 Constitution is the same “Philippine archipelago” referred to in Art. I of the 1973 Constitution which in turn corresponds to the territory defined and described in Art. 1 of the 1935 Constitution, which pertinently reads: “Section 1. The Philippines comprises all the territory ceded to the [US] by the Treaty of Paris concluded between the [US] and Spain on the tenth day of December, [1898], the limits of which are set forth in Article III of said treaty, together with all the islands in the treaty concluded at Washington, between the [US] and Spain on November [7, 1900] and the treaty concluded between the [US] and Great Britain…”(J. Velasco, Concurring Opinion in Magallona v. Ermita, En Banc, G.R. No. 187167, 16 August 2011)

While the Treaty of Paris is not mentioned in both the 1973 and 1987 Constitutions, its mention, so the nationalistic arguments went, being “a repulsive reminder of the indignity of our colonial past,” it is at once clear that the Treaty of Paris had been utilized as key reference point in the definition of the national territory. (J. Velasco, Concurring Opinion in Magallona v. Ermita, En Banc, G.R. No. 187167, 16 August 2011)

b. All other territories

The phrase “all other territories over which the Philippines has sovereignty or jurisdiction,” found in the 1987 Constitution, which replaced the deleted phrase “all territories belonging to the Philippines by historic right or legal title” found in the 1973 Constitution, covers areas linked to the Philippines with varying degrees of certainty. Under this category would fall: (a) Batanes, which then 1971 Convention Delegate Eduardo Quintero, Chairperson of the Committee on National Territory, described as belonging to the Philippines in all its history; (b) Sabah, over which a formal claim had been filed, the so-called Freedomland (a group of islands known as Spratleys); and (c) any other territory, over which the Philippines had filed a claim or might acquire in the future through recognized modes of acquiring territory. As an author puts it, the deletion of the words “by historic right or legal title” is not to be interpreted as precluding future claims to areas over which the Philippines does not actually exercise sovereignty. (J. Velasco, Concurring Opinion in Magallona v. Ermita, En Banc, G.R. No. 187167, 16 August 2011)

3. Territory via Treaties

Philippine territory has been drawn through these treaties:

1) Treaty of Paris

2) Treaty of Washington

3) Treaty between United States and Great Britain

(See R.A. 3046 on Baselines, as amended by R.A. 5446)

3. Baselines Law

a. R.A. 9552, delineating baselines, is valid

Baselines laws such as RA 9522 are enacted by UNCLOS III States parties to mark-out specific basepoints along their coasts from which baselines are drawn, either straight or contoured, to serve as geographic starting points to measure the breadth of the maritime zones and continental shelf. (Magallona v. Ermita, En Banc, G.R. No. 187167, 16 August 2011)

Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit with precision the extent of their maritime zones and continental shelves. In turn, this gives notice to the rest of the international community of the scope of the maritime space and submarine areas within which States parties exercise treaty-based rights, namely, the exercise of sovereignty over territorial waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the contiguous zone (Article 33), and the right to exploit the living and non-living resources in the exclusive economic zone (Article 56) and continental shelf (Article 77). (Magallona v. Ermita, En Banc, G.R. No. 187167, 16 August 2011)

It cannot be over-emphasized enough that RA 9522 is a baseline law enacted to implement the 1982 LOSC, which in turn seeks to regulate and establish an orderly sea use rights over maritime zones. Or as the ponencia aptly states, RA 9522 aims to mark-out specific base points along the Philippine coast from which baselines are drawn to serve as starting points to measure the breadth of the territorial sea and maritime zones.21 The baselines are set to define the sea limits of a state, be it coastal or archipelagic, under the UNCLOS III regime. By setting the baselines to conform to the prescriptions of UNCLOS III, RA 9522 did not surrender any territory, as petitioners would insist at every turn, for UNCLOS III is concerned with setting order in the exercise of sea-use rights, not the acquisition or cession of territory. And let it be noted that under UNCLOS III, it is recognized that countries can have territories outside their baselines. Far from having a dismembering effect, then, RA 9522 has in a limited but real sense increased the country’s maritime boundaries. (J. Velasco, Concurring Opinion in Magallona v. Ermita, En Banc, G.R. No. 187167, 16 August 2011)

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