Merlin Magallona vs
The law did not decrease the demarcation of our territory. In fact, it
Secretary Eduardo Ermita
In March 2009, Republic Act 9522, an act defining the archipelagic
baselines of the Philippines was enacted – the law is also known as the
Baselines Law. This law was meant to comply with the terms of the third
United Nations Convention on the Law of the Sea (UNCLOS III), ratified
by the Philippines in February 1984.
Professor Merlin Magallona et al questioned the validity of RA 9522 as
they contend, among others, that the law decreased the national
territory of the Philippines hence the law is unconstitutional. Some of
their particular arguments are as follows:
a. the law abandoned the demarcation set by the Treaty of Paris and
other ancillary treaties – this also resulted to the exclusion of our claim
over Sabah;
b. the law, as well as UNCLOS itself, describes the Philippine waters
as “archipelagic” waters which, in international law, opens our
waters landward of the baselines to maritime passage by all vessels
(innocent passage) and aircrafts (overflight), undermining Philippine
sovereignty and national security, contravening the country’s nuclear-
free policy, and damaging marine resources, in violation of relevant
constitutional provisions;
c. the classification of the Kalayaan Island Group (KIG), as well as the
Scarborough Shoal (bajo de masinloc), as a “regime of islands”
pursuant to UNCLOS results in the loss of a large maritime area but
also prejudices the livelihood of subsistence fishermen.
ISSUE: Whether or not the contentions of Magallona et al are tenable.
HELD: No. The Supreme Court emphasized that RA 9522, or
UNCLOS, itself is not a means to acquire, or lose, territory. The treaty
and the baseline law has nothing to do with the acquisition,
enlargement, or diminution of the Philippine territory. What controls
when it comes to acquisition or loss of territory is the international law
principle on occupation, accretion, cession and prescription and NOT
the execution of multilateral treaties on the regulations of sea-use rights
or enacting statutes to comply with the treaty’s terms to delimit maritime
zones and continental shelves.
increased it. Under the old law amended by RA 9522 (RA 3046), we
adhered with the rectangular lines enclosing the Philippines. The area
that it covered was 440,994 square nautical miles (sq. na. mi.). But
under 9522, and with the inclusion of the exclusive economic zone, the
extent of our maritime was increased to 586,210 sq. na. mi. (See image
below for comparison)
If any, the baselines law is a notice to the international community of
the scope of the maritime space and submarine areas within which
States parties exercise treaty-based rights.
Anent their particular contentions:
a. The law did not abandon the Sabah claim. This is evident on the
provision of Section 2 of RA 9522:
Section 2. The definition of the baselines of the territorial sea of the
Philippine Archipelago as provided in this Act is without prejudice to the
delineation of the baselines of the territorial sea around the territory of
Sabah, situated in North Borneo, over which the Republic of the
Philippines has acquired dominion and sovereignty.
b. UNCLOS may term our waters as “archipelagic waters” and that we
may term it as our “internal waters”, but the bottom line is that our
country exercises sovereignty over these waters and UNCLOS itself
recognizes that. However, due to our observance of international law,
we allow the exercise of others of their right of innocent passage. No
modern State can validly invoke its sovereignty to absolutely forbid
innocent passage that is exercised in accordance with customary
international law without risking retaliatory measures from the
international community.
c. The classification of the KIG (or the Spratly’s), as well as the
Scarborough Shoal, as a regime of islands did not diminish our
maritime area. Under UNCLOS and under the baselines law, since they
are regimes of islands, they generate their own maritime zones – in
short, they are not to be enclosed within the baselines of the main
archipelago (which is the Philippine Island group). This is because if we
do that, then we will be enclosing a larger area which would already
depart from the provisions of UNCLOS – that the demarcation should
follow the natural contour of the archipelago.
Nevertheless, we still continue to lay claim over the KIG and the
Scarborough Shoal through effective occupation.
NOTES:
Under UNCLOS and the baselines law, we have three levels of
maritime zones where we exercise treaty-based rights:
a. territorial waters – 12 nautical miles from the baselines; where we
exercise sovereignty
b. contiguous zone – 24 nautical miles from the baselines; jurisdiction
where we can enforce customs, fiscal, immigration, and sanitation
laws (CFIS).
c. exclusive economic zone – 200 nautical miles from the baselines;
where we have the right to exploit the living and non-living resources in
the exclusive economic zone
Note: a fourth zone may be added which is the continental shelf – this
is covered by Article 77 of the UNCLOS.