1

1933 Montevideo Convention 1. The sovereignty of an archipelagic State extends to

the waters enclosed by the archipelagic baselines drawn
Article 1. The state as a person of international law
in accordance with article 47, described as archipelagic
should possess the following qualifications: (a) a
waters, regardless of their depth or distance from the
permanent population; (b) a defined territory; (c)
coast.
government; and (d) capacity to enter into relations with
the other states. 2. This sovereignty extends to the air space over the
archipelagic waters, as well as to their bed and subsoil,
UNCLOS
and the resources contained therein.
ARCHIPELAGIC STATES
3. This sovereignty is exercised subject to this Part.
Article 46 Use of terms For the purposes of this
4. The regime of archipelagic sea lanes passage
Convention: (a) "archipelagic State" means a State
established in this Part shall not in other respects affect
constituted wholly by one or more archipelagos and may
the status of the archipelagic waters, including the sea
include other islands; (b) "archipelago" means a group of
lanes, or the exercise by the archipelagic State of its
islands, including parts of islands, interconnecting waters
sovereignty over such waters and their air space, bed
and other natural features which are so closely
and subsoil, and the resources contained therein.
interrelated that such islands, waters and other natural
features form an intrinsic geographical, economic and INTERNAL WATERS
political entity, or which historically have been regarded
Article 8 Internal waters
as such.
1. Except as provided in Part IV, waters on the landward
Article 48 Measurement of the breadth of the territorial
side of the baseline of the territorial sea form part of the
sea, the contiguous zone, the exclusive economic zone
internal waters of the State.
and the continental shelf The breadth of the territorial
sea, the contiguous zone, the exclusive economic zone 2. Where the establishment of a straight baseline in
and the continental shelf shall be measured from accordance with the method set forth in article 7 has the
archipelagic baselines drawn in accordance with article effect of enclosing as internal waters areas which had not
47. Article 49 Legal status of archipelagic waters, of the previously been considered as such, a right of innocent
air space over archipelagic waters and of their bed and passage as provided in this Convention shall exist in
subsoil those waters.
Article 50
 2

Delimitation of internal waters Within its archipelagic Article 33 Contiguous zone

waters, the archipelagic State may draw closing lines for
1. In a zone contiguous to its territorial sea, described as
the delimitation of internal waters, in accordance with
the contiguous zone, the coastal State may exercise the
articles 9, 10 and 11.
control necessary to:
(a) prevent infringement of its customs, fiscal,
TERRITORIAL SEA AND CONTIGUOUS ZONE immigration or sanitary laws and regulations within its
territory or territorial sea;
SECTION 1. GENERAL PROVISIONS
(b) punish infringement of the above laws and regulations
Article 2 Legal status of the territorial sea, of the air
committed within its territory or territorial sea.
space over the territorial sea and of its bed and subsoil
2. The contiguous zone may not extend beyond 24
1. The sovereignty of a coastal State extends, beyond its
nautical miles from the baselines from which the breadth
land territory and internal waters and, in the case of an
of the territorial sea is measured.
archipelagic State, its archipelagic waters, to an adjacent
belt of sea, described as the territorial sea. EXCLUSIVE ECONOMIC ZONE
2. This sovereignty extends to the air space over the Article 55 Specific legal regime of the exclusive economic
territorial sea as well as to its bed and subsoil. zone
3. The sovereignty over the territorial sea is exercised The exclusive economic zone is an area beyond and
subject to this Convention and to other rules of adjacent to the territorial sea, subject to the specific legal
international law. regime established in this Part, under which the rights
and jurisdiction of the coastal State and the rights and
SECTION 2. LIMITS OF THE TERRITORIAL SEA
freedoms of other States are governed by the relevant
Article 3 Breadth of the territorial sea Every State has the provisions of this Convention.
right to establish the breadth of its territorial sea up to a
Article 56 Rights, jurisdiction and duties of the coastal
limit not exceeding 12 nautical miles, measured from
State in the exclusive economic zone
baselines determined in accordance with this
Convention. 1. In the exclusive economic zone, the coastal State has:
SECTION 4. CONTIGUOUS ZONE (a) sovereign rights for the purpose of exploring and
exploiting, conserving and managing the natural
 3

resources, whether living or non-living, of the waters Article 58 Rights and duties of other States in the
superjacent to the seabed and of the seabed and its exclusive economic zone
subsoil, and with regard to other activities for the
1. In the exclusive economic zone, all States, whether
economic exploitation and exploration of the zone, such
coastal or land-locked, enjoy, subject to the relevant
as the production of energy from the water, currents and
provisions of this Convention, the freedoms referred to in
winds;
article 87 of navigation and overflight and of the laying of
(b) jurisdiction as provided for in the relevant provisions submarine cables and pipelines, and other internationally
of this Convention with regard to: lawful uses of the sea related to these freedoms, such as
those associated with the operation of ships, aircraft and
(i) the establishment and use of artificial
submarine cables and pipelines, and compatible with the
islands, installations and structures; 44
other provisions of this Convention.
(ii) marine scientific research;
2. Articles 88 to 115 and other pertinent rules of
(iii) the protection and preservation of the international law apply to the exclusive economic zone in
marine environment; so far as they are not incompatible with this Part.

(c) other rights and duties provided for in this Convention. 3. In exercising their rights and performing their duties
under this Convention in the exclusive economic zone,
2. In exercising its rights and performing its duties under States shall have due regard to the rights and duties of
this Convention in the exclusive economic zone, the the coastal State and shall comply with the laws and
coastal State shall have due regard to the rights and regulations adopted by the coastal State in accordance
duties of other States and shall act in a manner with the provisions of this Convention and other rules of
compatible with the provisions of this Convention. international law in so far as they are not incompatible
3. The rights set out in this article with respect to the with this Part.
seabed and subsoil shall be exercised in accordance with CONTINENTAL SHELF
Part VI.
Article 76 Definition of the continental shelf
Article 57 Breadth of the exclusive economic zone
1. The continental shelf of a coastal State comprises the
The exclusive economic zone shall not extend beyond seabed and subsoil of the submarine areas that extend
200 nautical miles from the baselines from which the beyond its territorial sea throughout the natural
breadth of the territorial sea is measured. prolongation of its land territory to the outer edge of the
 4

continental margin, or to a distance of 200 nautical miles 1. The rights of the coastal State over the continental
from the baselines from which the breadth of the shelf do not affect the legal status of the superjacent
territorial sea is measured where the outer edge of the waters or of the air space above those waters.
continental margin does not extend up to that distance.
2. The exercise of the rights of the coastal State over the
Article 77 Rights of the coastal State over the continental continental shelf must not infringe or result in any
shelf unjustifiable interference with navigation and other rights
and freedoms of other States as provided for in this
1. The coastal State exercises over the continental shelf
Convention.
sovereign rights for the purpose of exploring it and
exploiting its natural resources. R.A. No. 9522
2. The rights referred to in paragraph 1 are exclusive in Section 2. The baseline in the following areas over which
the sense that if the coastal State does not explore the the Philippines likewise exercises sovereignty and
continental shelf or exploit its natural resources, no one jurisdiction shall be determined as "Regime of Islands"
may undertake these activities without the express under the Republic of the Philippines consistent with
consent of the coastal State. Article 121 of the United Nations Convention on the Law
of the Sea (UNCLOS):
3. The rights of the coastal State over the continental
shelf do not depend on occupation, effective or notional, a) The Kalayaan Island Group as constituted under
or on any express proclamation. Presidential Decree No. 1596; and
4. The natural resources referred to in this Part consist of b) Bajo de Masinloc, also known as Scarborough Shoal.
the mineral and other non-living resources of the seabed
Section 3. This Act affirms that the Republic of the
and subsoil together with living organisms belonging to
Philippines has dominion, sovereignty and jurisdiction
sedentary species, that is to say, organisms which, at the
over all portions of the national territory as defined in the
harvestable stage, either are immobile on or under the
Constitution and by provisions of applicable laws
seabed or are unable to move except in constant
including, without limitation, Republic Act No. 7160,
physical contact with the seabed or the subsoil.
otherwise known as the Local Government Code of 1991,
Article 78 Legal status of the superjacent waters and air as amended.
space and the rights and freedoms of other States
 5

CRISTINE MAE TABING, VANESSA ANNE TORNO, MARIA

ESTER VANGUARDIA, and MARCELINO VELOSO
III, Petitioners, 
vs.
HON. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE
SECRETARY, HON. ALBERTO ROMULO, IN HIS CAPACITY
AS SECRETARY OF THE DEPARTMENT OF FOREIGN
AFFAIRS, HON. ROLANDO ANDAYA, IN HIS CAPACITY AS
SECRETARY OF THE DEPARTMENT OF BUDGET AND
MANAGEMENT, HON. DIONY VENTURA, IN HIS CAPACITY
AS ADMINISTRATOR OF THE NATIONAL MAPPING &
RESOURCE INFORMATION AUTHORITY, and HON. HILARIO
Republic of the Philippines DAVIDE, JR., IN HIS CAPACITY AS REPRESENTATIVE OF
SUPREME COURT THE PERMANENT MISSION OF THE REPUBLIC OF THE
Manila PHILIPPINES TO THE UNITED NATIONS,Respondents.

EN BANC DECISION

G.R No. 187167               August 16, 2011 CARPIO, J.:

PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY-LIST The Case

REP. RISA HONTIVEROS, PROF. HARRY C. ROQUE, JR.,
AND UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW This original action for the writs of certiorari and prohibition
STUDENTS, ALITHEA BARBARA ACAS, VOLTAIRE assails the constitutionality of Republic Act No. 95221(RA 9522)
ALFERES, CZARINA MAY ALTEZ, FRANCIS ALVIN ASILO, adjusting the country’s archipelagic baselines and classifying the
SHERYL BALOT, RUBY AMOR BARRACA, JOSE JAVIER baseline regime of nearby territories.
BAUTISTA, ROMINA BERNARDO, VALERIE PAGASA
BUENAVENTURA, EDAN MARRI CAÑETE, VANN ALLEN
The Antecedents
DELA CRUZ, RENE DELORINO, PAULYN MAY DUMAN,
SHARON ESCOTO, RODRIGO FAJARDO III, GIRLIE FERRER,
RAOULLE OSEN FERRER, CARLA REGINA GREPO, ANNA In 1961, Congress passed Republic Act No. 3046 (RA
MARIE CECILIA GO, IRISH KAY KALAW, MARY ANN JOY 3046)2 demarcating the maritime baselines of the Philippines as
LEE, MARIA LUISA MANALAYSAY, MIGUEL RAFAEL an archipelagic State.3 This law followed the framing of the
MUSNGI, MICHAEL OCAMPO, JAKLYN HANNA PINEDA, Convention on the Territorial Sea and the Contiguous Zone in
WILLIAM RAGAMAT, MARICAR RAMOS, ENRIK FORT 1958 (UNCLOS I),4 codifying, among others, the sovereign right
REVILLAS, JAMES MARK TERRY RIDON, JOHANN FRANTZ of States parties over their "territorial sea," the breadth of which,
RIVERA IV, CHRISTIAN RIVERO, DIANNE MARIE ROA, however, was left undetermined. Attempts to fill this void during
NICHOLAS SANTIZO, MELISSA CHRISTINA SANTOS, the second round of negotiations in Geneva in 1960 (UNCLOS II)
 6

proved futile. Thus, domestically, RA 3046 remained unchanged fishermen.14 To buttress their argument of territorial diminution,
for nearly five decades, save for legislation passed in 1968 petitioners facially attack RA 9522 for what it excluded and
(Republic Act No. 5446 [RA 5446]) correcting typographical errors included – its failure to reference either the Treaty of Paris or
and reserving the drawing of baselines around Sabah in North Sabah and its use of UNCLOS III’s framework of regime of
Borneo. islands to determine the maritime zones of the KIG and the
Scarborough Shoal.
In March 2009, Congress amended RA 3046 by enacting RA
9522, the statute now under scrutiny. The change was prompted Commenting on the petition, respondent officials raised threshold
by the need to make RA 3046 compliant with the terms of the issues questioning (1) the petition’s compliance with the case or
United Nations Convention on the Law of the Sea (UNCLOS controversy requirement for judicial review grounded on
III),5 which the Philippines ratified on 27 February 1984. 6 Among petitioners’ alleged lack of locus standi and (2) the propriety of the
others, UNCLOS III prescribes the water-land ratio, length, and writs of certiorari and prohibition to assail the constitutionality of
contour of baselines of archipelagic States like the RA 9522. On the merits, respondents defended RA 9522 as the
Philippines7 and sets the deadline for the filing of application for country’s compliance with the terms of UNCLOS III, preserving
the extended continental shelf.8 Complying with these Philippine territory over the KIG or Scarborough Shoal.
requirements, RA 9522 shortened one baseline, optimized the Respondents add that RA 9522 does not undermine the country’s
location of some basepoints around the Philippine archipelago security, environment and economic interests or relinquish the
and classified adjacent territories, namely, the Kalayaan Island Philippines’ claim over Sabah.
Group (KIG) and the Scarborough Shoal, as "regimes of islands"
whose islands generate their own applicable maritime zones. Respondents also question the normative force, under
international law, of petitioners’ assertion that what Spain ceded
Petitioners, professors of law, law students and a legislator, in to the United States under the Treaty of Paris were the islands
their respective capacities as "citizens, taxpayers or x x x and all the waters found within the boundaries of the rectangular
legislators,"9 as the case may be, assail the constitutionality of RA area drawn under the Treaty of Paris.
9522 on two principal grounds, namely: (1) RA 9522 reduces
Philippine maritime territory, and logically, the reach of the We left unacted petitioners’ prayer for an injunctive writ.
Philippine state’s sovereign power, in violation of Article 1 of the
1987 Constitution,10 embodying the terms of the Treaty of The Issues
Paris11 and ancillary treaties,12 and (2) RA 9522 opens the
country’s waters landward of the baselines to maritime passage
The petition raises the following issues:
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 1. Preliminarily –
constitutional provisions.13
1. Whether petitioners possess locus standi to
In addition, petitioners contend that RA 9522’s treatment of the bring this suit; and
KIG as "regime of islands" not only results in the loss of a large
maritime area but also prejudices the livelihood of subsistence
 7

2. Whether the writs of certiorari and prohibition certiorari and prohibition, noting that the writs cannot issue absent
are the proper remedies to assail the any showing of grave abuse of discretion in the exercise of
constitutionality of RA 9522. judicial, quasi-judicial or ministerial powers on the part of
respondents and resulting prejudice on the part of petitioners. 18
2. On the merits, whether RA 9522 is unconstitutional.
Respondents’ submission holds true in ordinary civil proceedings.
The Ruling of the Court When this Court exercises its constitutional power of judicial
review, however, we have, by tradition, viewed the writs of
On the threshold issues, we hold that (1) petitioners certiorari and prohibition as proper remedial vehicles to test the
possess locus standi to bring this suit as citizens and (2) the writs constitutionality of statutes,19 and indeed, of acts of other
of certiorari and prohibition are proper remedies to test the branches of government.20 Issues of constitutional import are
constitutionality of RA 9522. On the merits, we find no basis to sometimes crafted out of statutes which, while having no bearing
declare RA 9522 unconstitutional. on the personal interests of the petitioners, carry such relevance
in the life of this nation that the Court inevitably finds itself
constrained to take cognizance of the case and pass upon the
On the Threshold Issues
issues raised, non-compliance with the letter of procedural rules
Petitioners Possess Locus
notwithstanding. The statute sought to be reviewed here is one
Standi as Citizens
such law.
Petitioners themselves undermine their assertion of locus
RA 9522 is Not Unconstitutional
standi as legislators and taxpayers because the petition alleges
RA 9522 is a Statutory Tool
neither infringement of legislative prerogative15 nor misuse of
to Demarcate the Country’s
public funds,16 occasioned by the passage and implementation of
Maritime Zones and Continental
RA 9522. Nonetheless, we recognize petitioners’ locus standi as
Shelf Under UNCLOS III, not to
citizens with constitutionally sufficient interest in the resolution of
Delineate Philippine Territory
the merits of the case which undoubtedly raises issues of national
significance necessitating urgent resolution. Indeed, owing to the
peculiar nature of RA 9522, it is understandably difficult to find Petitioners submit that RA 9522 "dismembers a large portion of
other litigants possessing "a more direct and specific interest" to the national territory"21 because it discards the pre-UNCLOS III
bring the suit, thus satisfying one of the requirements for granting demarcation of Philippine territory under the Treaty of Paris and
citizenship standing.17 related treaties, successively encoded in the definition of national
territory under the 1935, 1973 and 1987 Constitutions. Petitioners
theorize that this constitutional definition trumps any treaty or
The Writs of Certiorari and Prohibition
statutory provision denying the Philippines sovereign control over
Are Proper Remedies to Test
waters, beyond the territorial sea recognized at the time of the
the Constitutionality of Statutes
Treaty of Paris, that Spain supposedly ceded to the United
States. Petitioners argue that from the Treaty of Paris’ technical
In praying for the dismissal of the petition on preliminary grounds, description, Philippine sovereignty over territorial waters extends
respondents seek a strict observance of the offices of the writs of
 8

hundreds of nautical miles around the Philippine archipelago, notice to the rest of the international community of the scope of
embracing the rectangular area delineated in the Treaty of Paris.22 the maritime space and submarine areas within which States
parties exercise treaty-based rights, namely, the exercise of
Petitioners’ theory fails to persuade us. sovereignty over territorial waters (Article 2), the jurisdiction to
enforce customs, fiscal, immigration, and sanitation laws in the
UNCLOS III has nothing to do with the acquisition (or loss) of contiguous zone (Article 33), and the right to exploit the living and
territory. It is a multilateral treaty regulating, among others, sea- non-living resources in the exclusive economic zone (Article 56)
use rights over maritime zones (i.e., the territorial waters [12 and continental shelf (Article 77).
nautical miles from the baselines], contiguous zone [24 nautical
miles from the baselines], exclusive economic zone [200 nautical Even under petitioners’ theory that the Philippine territory
miles from the baselines]), and continental shelves that UNCLOS embraces the islands and all the waters within the rectangular
III delimits.23 UNCLOS III was the culmination of decades-long area delimited in the Treaty of Paris, the baselines of the
negotiations among United Nations members to codify norms Philippines would still have to be drawn in accordance with RA
regulating the conduct of States in the world’s oceans and 9522 because this is the only way to draw the baselines in
submarine areas, recognizing coastal and archipelagic States’ conformity with UNCLOS III. The baselines cannot be drawn from
graduated authority over a limited span of waters and submarine the boundaries or other portions of the rectangular area
lands along their coasts. delineated in the Treaty of Paris, but from the "outermost islands
and drying reefs of the archipelago."24
On the other hand, baselines laws such as RA 9522 are enacted
by UNCLOS III States parties to mark-out specific basepoints UNCLOS III and its ancillary baselines laws play no role in the
along their coasts from which baselines are drawn, either straight acquisition, enlargement or, as petitioners claim, diminution of
or contoured, to serve as geographic starting points to measure territory. Under traditional international law typology, States
the breadth of the maritime zones and continental shelf. Article 48 acquire (or conversely, lose) territory through occupation,
of UNCLOS III on archipelagic States like ours could not be any accretion, cession and prescription, 25 not by executing multilateral
clearer: treaties on the regulations of sea-use rights or enacting statutes
to comply with the treaty’s terms to delimit maritime zones and
Article 48. Measurement of the breadth of the territorial sea, the continental shelves. Territorial claims to land features are outside
contiguous zone, the exclusive economic zone and the UNCLOS III, and are instead governed by the rules on general
continental shelf. – The breadth of the territorial sea, the international law.26
contiguous zone, the exclusive economic zone and the
continental shelf shall be measured from archipelagic RA 9522’s Use of the Framework
baselines drawn in accordance with article 47. (Emphasis of Regime of Islands to Determine the
supplied) Maritime Zones of the KIG and the
Scarborough Shoal, not Inconsistent
Thus, baselines laws are nothing but statutory mechanisms for with the Philippines’ Claim of Sovereignty
UNCLOS III States parties to delimit with precision the extent of Over these Areas
their maritime zones and continental shelves. In turn, this gives
 9

Petitioners next submit that RA 9522’s use of UNCLOS III’s as amended, taking
regime of islands framework to draw the baselines, and to into account the taking into account
measure the breadth of the applicable maritime zones of the KIG, Treaty of Paris’ UNCLOS III (in
"weakens our territorial claim" over that area. 27Petitioners add that delimitation (in square nautical
the KIG’s (and Scarborough Shoal’s) exclusion from the square nautical miles)
Philippine archipelagic baselines results in the loss of "about miles)
15,000 square nautical miles of territorial waters," prejudicing the
livelihood of subsistence fishermen.28 A comparison of the Internal or
configuration of the baselines drawn under RA 3046 and RA 9522 archipelagic
and the extent of maritime space encompassed by each law, waters 166,858 171,435
coupled with a reading of the text of RA 9522 and its
Territorial Sea 274,136 32,106
congressional deliberations, vis-à-vis the Philippines’ obligations
under UNCLOS III, belie this view. 1avvphi1

Exclusive
Economic Zone   382,669
The configuration of the baselines drawn under RA 3046 and RA
9522 shows that RA 9522 merely followed the basepoints TOTAL 440,994 586,210
mapped by RA 3046, save for at least nine basepoints that RA
9522 skipped to optimize the location of basepoints and adjust Thus, as the map below shows, the reach of the exclusive
the length of one baseline (and thus comply with UNCLOS III’s economic zone drawn under RA 9522 even extends way beyond
limitation on the maximum length of baselines). Under RA 3046, the waters covered by the rectangular demarcation under the
as under RA 9522, the KIG and the Scarborough Shoal lie Treaty of Paris. Of course, where there are overlapping exclusive
outside of the baselines drawn around the Philippine archipelago. economic zones of opposite or adjacent States, there will have to
This undeniable cartographic fact takes the wind out of be a delineation of maritime boundaries in accordance with
petitioners’ argument branding RA 9522 as a statutory UNCLOS III.30
renunciation of the Philippines’ claim over the KIG, assuming that
baselines are relevant for this purpose.

Petitioners’ assertion of loss of "about 15,000 square nautical

miles of territorial waters" under RA 9522 is similarly unfounded
both in fact and law. On the contrary, RA 9522, by optimizing the
location of basepoints, increased the Philippines’ total maritime
space (covering its internal waters, territorial sea and exclusive
economic zone) by 145,216 square nautical miles, as shown in
the table below:29

  Extent of maritime Extent of maritime

area using RA 3046, area using RA 9522,
 10

Further, petitioners’ argument that the KIG now lies outside

Philippine territory because the baselines that RA 9522 draws do
not enclose the KIG is negated by RA 9522 itself. Section 2 of the
law commits to text the Philippines’ continued claim of
sovereignty and jurisdiction over the KIG and the Scarborough
Shoal:

SEC. 2. The baselines in the following areas over which the

Philippines likewise exercises sovereignty and
jurisdiction shall be determined as "Regime of Islands" under
the Republic of the Philippines consistent with Article 121 of the
United Nations Convention on the Law of the Sea (UNCLOS):

a) The Kalayaan Island Group as constituted under

Presidential Decree No. 1596 and

b) Bajo de Masinloc, also known as Scarborough Shoal.

(Emphasis supplied)

Had Congress in RA 9522 enclosed the KIG and the

Scarborough Shoal as part of the Philippine archipelago, adverse
legal effects would have ensued. The Philippines would have
committed a breach of two provisions of UNCLOS III. First, Article
47 (3) of UNCLOS III requires that "[t]he drawing of such
baselines shall not depart to any appreciable extent from the
general configuration of the archipelago." Second, Article 47 (2)
of UNCLOS III requires that "the length of the baselines shall not
exceed 100 nautical miles," save for three per cent (3%) of the
total number of baselines which can reach up to 125 nautical
miles.31

Although the Philippines has consistently claimed sovereignty

over the KIG32 and the Scarborough Shoal for several decades,
these outlying areas are located at an appreciable distance from
the nearest shoreline of the Philippine archipelago, 33 such that
any straight baseline loped around them from the nearest
 11

basepoint will inevitably "depart to an appreciable extent from the including the extended continental shelf in the manner provided
general configuration of the archipelago." by Article 47 of [UNCLOS III]. As defined by R.A. 3046, as
amended by R.A. 5446, the baselines suffer from some technical
The principal sponsor of RA 9522 in the Senate, Senator Miriam deficiencies, to wit:
Defensor-Santiago, took pains to emphasize the foregoing during
the Senate deliberations: 1. The length of the baseline across Moro Gulf (from
Middle of 3 Rock Awash to Tongquil Point) is 140.06
What we call the Kalayaan Island Group or what the rest of the nautical miles x x x. This exceeds the maximum length
world call[] the Spratlys and the Scarborough Shoal are outside allowed under Article 47(2) of the [UNCLOS III], which
our archipelagic baseline because if we put them inside our states that "The length of such baselines shall not exceed
baselines we might be accused of violating the provision of 100 nautical miles, except that up to 3 per cent of the total
international law which states: "The drawing of such baseline number of baselines enclosing any archipelago may
shall not depart to any appreciable extent from the general exceed that length, up to a maximum length of 125
configuration of the archipelago." So sa loob ng ating baseline, nautical miles."
dapat magkalapit ang mga islands. Dahil malayo ang
Scarborough Shoal, hindi natin masasabing malapit sila sa atin 2. The selection of basepoints is not optimal. At least 9
although we are still allowed by international law to claim them as basepoints can be skipped or deleted from the baselines
our own. system. This will enclose an additional 2,195 nautical
miles of water.
This is called contested islands outside our configuration. We see
that our archipelago is defined by the orange line which [we] call[] 3. Finally, the basepoints were drawn from maps existing
archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle in 1968, and not established by geodetic survey methods.
doon sa itaas, that is Scarborough Shoal, itong malaking circle sa Accordingly, some of the points, particularly along the
ibaba, that is Kalayaan Group or the Spratlys. Malayo na sila sa west coasts of Luzon down to Palawan were later found
ating archipelago kaya kung ilihis pa natin ang dating to be located either inland or on water, not on low-water
archipelagic baselines para lamang masama itong dalawang line and drying reefs as prescribed by Article 47. 35
circles, hindi na sila magkalapit at baka hindi na tatanggapin ng
United Nations because of the rule that it should follow the Hence, far from surrendering the Philippines’ claim over the KIG
natural configuration of the archipelago.34 (Emphasis supplied) and the Scarborough Shoal, Congress’ decision to classify the
KIG and the Scarborough Shoal as "‘Regime[s] of Islands’ under
Similarly, the length of one baseline that RA 3046 drew exceeded the Republic of the Philippines consistent with Article 121" 36 of
UNCLOS III’s limits.  The need to shorten this baseline, and in
1avvphi1 UNCLOS III manifests the Philippine State’s responsible
addition, to optimize the location of basepoints using current observance of its pacta sunt servanda obligation under UNCLOS
maps, became imperative as discussed by respondents: III. Under Article 121 of UNCLOS III, any "naturally formed area
of land, surrounded by water, which is above water at high tide,"
[T]he amendment of the baselines law was necessary to enable such as portions of the KIG, qualifies under the category of
the Philippines to draw the outer limits of its maritime zones "regime of islands," whose islands generate their own applicable
maritime zones.37
 12

Statutory Claim Over Sabah under 1. The sovereignty of an archipelagic State extends to

RA 5446 Retained the waters enclosed by the archipelagic
baselines drawn in accordance with article 47, described
Petitioners’ argument for the invalidity of RA 9522 for its failure to as archipelagic waters, regardless of their depth or
textualize the Philippines’ claim over Sabah in North Borneo is distance from the coast.
also untenable. Section 2 of RA 5446, which RA 9522 did not
repeal, keeps open the door for drawing the baselines of Sabah: 2. This sovereignty extends to the air space over the
archipelagic waters, as well as to their bed and
Section 2. The definition of the baselines of the territorial sea of subsoil, and the resources contained therein.
the Philippine Archipelago as provided in this Act is without
prejudice to the delineation of the baselines of the territorial xxxx
sea around the territory of Sabah, situated in North Borneo,
over which the Republic of the Philippines has acquired 4. The regime of archipelagic sea lanes passage
dominion and sovereignty. (Emphasis supplied) established in this Part shall not in other respects
affect the status of the archipelagic waters, including
UNCLOS III and RA 9522 not the sea lanes, or the exercise by the archipelagic State
Incompatible with the Constitution’s of its sovereignty over such waters and their air
Delineation of Internal Waters space, bed and subsoil, and the resources contained
therein. (Emphasis supplied)
As their final argument against the validity of RA 9522, petitioners
contend that the law unconstitutionally "converts" internal waters The fact of sovereignty, however, does not preclude the operation
into archipelagic waters, hence subjecting these waters to the of municipal and international law norms subjecting the territorial
right of innocent and sea lanes passage under UNCLOS III, sea or archipelagic waters to necessary, if not marginal, burdens
including overflight. Petitioners extrapolate that these passage in the interest of maintaining unimpeded, expeditious international
rights indubitably expose Philippine internal waters to nuclear and navigation, consistent with the international law principle of
maritime pollution hazards, in violation of the Constitution. 38 freedom of navigation. Thus, domestically, the political branches
of the Philippine government, in the competent discharge of their
Whether referred to as Philippine "internal waters" under Article I constitutional powers, may pass legislation designating routes
of the Constitution39 or as "archipelagic waters" under UNCLOS III within the archipelagic waters to regulate innocent and sea lanes
(Article 49 [1]), the Philippines exercises sovereignty over the passage.40 Indeed, bills drawing nautical highways for sea lanes
body of water lying landward of the baselines, including the air passage are now pending in Congress.41
space over it and the submarine areas underneath. UNCLOS III
affirms this: In the absence of municipal legislation, international law norms,
now codified in UNCLOS III, operate to grant innocent passage
Article 49. Legal status of archipelagic waters, of the air space rights over the territorial sea or archipelagic waters, subject to the
over archipelagic waters and of their bed and subsoil. – treaty’s limitations and conditions for their exercise. 42 Significantly,
the right of innocent passage is a customary international
 13

law,43 thus automatically incorporated in the corpus of Philippine relating to the protection of marine wealth (Article XII, Section 2,
law.44 No modern State can validly invoke its sovereignty to paragraph 251 ) and subsistence fishermen (Article XIII, Section
absolutely forbid innocent passage that is exercised in 752 ), are not violated by RA 9522.
accordance with customary international law without risking
retaliatory measures from the international community. In fact, the demarcation of the baselines enables the Philippines
to delimit its exclusive economic zone, reserving solely to the
The fact that for archipelagic States, their archipelagic waters are Philippines the exploitation of all living and non-living resources
subject to both the right of innocent passage and sea lanes within such zone. Such a maritime delineation binds the
passage45 does not place them in lesser footing vis-à- international community since the delineation is in strict
vis continental coastal States which are subject, in their territorial observance of UNCLOS III. If the maritime delineation is contrary
sea, to the right of innocent passage and the right of transit to UNCLOS III, the international community will of course reject it
passage through international straits. The imposition of these and will refuse to be bound by it.
passage rights through archipelagic waters under UNCLOS III
was a concession by archipelagic States, in exchange for their UNCLOS III favors States with a long coastline like the
right to claim all the waters landward of their Philippines. UNCLOS III creates a sui generis maritime space –
baselines, regardless of their depth or distance from the coast, as the exclusive economic zone – in waters previously part of the
archipelagic waters subject to their territorial sovereignty. More high seas. UNCLOS III grants new rights to coastal States to
importantly, the recognition of archipelagic States’ archipelago exclusively exploit the resources found within this zone up to 200
and the waters enclosed by their baselines as one cohesive entity nautical miles.53 UNCLOS III, however, preserves the traditional
prevents the treatment of their islands as separate islands under freedom of navigation of other States that attached to this zone
UNCLOS III.46 Separate islands generate their own maritime beyond the territorial sea before UNCLOS III.
zones, placing the waters between islands separated by more
than 24 nautical miles beyond the States’ territorial sovereignty, RA 9522 and the Philippines’ Maritime Zones
subjecting these waters to the rights of other States under
UNCLOS III.47
Petitioners hold the view that, based on the permissive text of
UNCLOS III, Congress was not bound to pass RA 9522. 54 We
Petitioners’ invocation of non-executory constitutional provisions have looked at the relevant provision of UNCLOS III55 and we find
in Article II (Declaration of Principles and State Policies) 48 must petitioners’ reading plausible. Nevertheless, the prerogative of
also fail. Our present state of jurisprudence considers the choosing this option belongs to Congress, not to this Court.
provisions in Article II as mere legislative guides, which, absent Moreover, the luxury of choosing this option comes at a very
enabling legislation, "do not embody judicially enforceable steep price. Absent an UNCLOS III compliant baselines law, an
constitutional rights x x x."49 Article II provisions serve as guides in archipelagic State like the Philippines will find itself devoid of
formulating and interpreting implementing legislation, as well as in internationally acceptable baselines from where the breadth of its
interpreting executory provisions of the Constitution. maritime zones and continental shelf is measured. This is recipe
Although Oposa v. Factoran50 treated the right to a healthful and for a two-fronted disaster: first, it sends an open invitation to the
balanced ecology under Section 16 of Article II as an exception, seafaring powers to freely enter and exploit the resources in the
the present petition lacks factual basis to substantiate the claimed waters and submarine areas around our archipelago;
constitutional violation. The other provisions petitioners cite, and second, it weakens the country’s case in any international
 14

dispute over Philippine maritime space. These are consequences

Congress wisely avoided. MARTIN S. VILLARAMA,
ROBERTO A. ABAD
JR.
Associate Justice
Associate Justice
The enactment of UNCLOS III compliant baselines law for the
Philippine archipelago and adjacent areas, as embodied in RA
9522, allows an internationally-recognized delimitation of the JOSE PORTUGAL
JOSE C. MENDOZA
breadth of the Philippines’ maritime zones and continental shelf. PEREZ
Associate Justice
RA 9522 is therefore a most vital step on the part of the Associate Justice
Philippines in safeguarding its maritime zones, consistent with the
Constitution and our national interest.
MARIA LOURDES P. A. SERENO
Associate Justice
WHEREFORE, we DISMISS the petition.
CERTIFICATION
SO ORDERED.
Pursuant to Section 13, Article VIII of the Constitution, I certify
ANTONIO T. CARPIO that the conclusions in the above Decision had been reached in
Associate Justice consultation before the case was assigned to the writer of the
opinion of the Court.
WE CONCUR:
RENATO C. CORONA
RENATO C. CORONA Chief Justice
Chief Justice

TERESITA J.
PRESBITERO J.
LEONARDO-DE
VELASCO, JR. Footnotes
CASTRO
Associate Justice
Associate Justice
1
 Entitled "An Act to Amend Certain Provisions of Republic
DIOSDADO M. Act No. 3046, as Amended by Republic Act No. 5446, to
ARTURO D. BRION Define the Archipelagic Baselines of the Philippines, and
PERALTA
Associate Justice for Other Purposes."
Associate Justice

MARIANO C. DEL  Entitled "An Act to Define the Baselines of the Territorial
2

LUCAS P. BERSAMIN Sea of the Philippines."

CASTILLO
Associate Justice
Associate Justice
 15

3
 The third "Whereas Clause" of RA 3046 expresses the 3. The drawing of such baselines shall not depart
import of treating the Philippines as an archipelagic State: to any appreciable extent from the general
configuration of the archipelago. (Emphasis
"WHEREAS, all the waters around, between, and supplied)
connecting the various islands of the Philippine
archipelago, irrespective of their width or xxxx
dimensions, have always been considered as
necessary appurtenances of the land territory, 8
 UNCLOS III entered into force on 16 November 1994.
forming part of the inland waters of the The deadline for the filing of application is mandated in
Philippines." Article 4, Annex II: "Where a coastal State intends to
establish, in accordance with article 76, the outer limits of
4
 One of the four conventions framed during the first its continental shelf beyond 200 nautical miles, it shall
United Nations Convention on the Law of the Sea in submit particulars of such limits to the Commission along
Geneva, this treaty, excluding the Philippines, entered with supporting scientific and technical data as soon as
into force on 10 September 1964. possible but in any case within 10 years of the entry into
force of this Convention for that State. The coastal State
5
 UNCLOS III entered into force on 16 November 1994. shall at the same time give the names of any Commission
members who have provided it with scientific and
6
 The Philippines signed the treaty on 10 December 1982. technical advice." (Underscoring supplied)

7
 Article 47, paragraphs 1-3, provide: In a subsequent meeting, the States parties
agreed that for States which became bound by
the treaty before 13 May 1999 (such as the
1. An archipelagic State may draw straight
Philippines) the ten-year period will be counted
archipelagic baselines joining the outermost
from that date. Thus, RA 9522, which took effect
points of the outermost islands and drying reefs of
on 27 March 2009, barely met the deadline.
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
9
 Rollo, p. 34.
the area of the land, including atolls, is between 1
to 1 and 9 to 1.
10
 Which provides: "The national territory comprises the
Philippine archipelago, with all the islands and waters
2. The length of such baselines shall not exceed embraced therein, and all other territories over which the
100 nautical miles, except that up to 3 per cent of Philippines has sovereignty or jurisdiction, consisting of its
the total number of baselines enclosing any terrestrial, fluvial, and aerial domains, including its
archipelago may exceed that length, up to a territorial sea, the seabed, the subsoil, the insular
maximum length of 125 nautical miles. shelves, and other submarine areas. The waters around,
between, and connecting the islands of the archipelago,
 16

regardless of their breadth and dimensions, form part of 19

 See e.g. Aquino III v. COMELEC, G.R. No. 189793, 7
the internal waters of the Philippines." April 2010, 617 SCRA 623 (dismissing a petition for
certiorari and prohibition assailing the constitutionality of
 Entered into between the Unites States and Spain on
11 Republic Act No. 9716, not for the impropriety of remedy
10 December 1898 following the conclusion of the but for lack of merit); Aldaba v. COMELEC, G.R. No.
Spanish-American War. Under the terms of the treaty, 188078, 25 January 2010, 611 SCRA 137 (issuing the
Spain ceded to the United States "the archipelago known writ of prohibition to declare unconstitutional Republic Act
as the Philippine Islands" lying within its technical No. 9591); Macalintal v. COMELEC, 453 Phil. 586 (2003)
description. (issuing the writs of certiorari and prohibition declaring
unconstitutional portions of Republic Act No. 9189).
12
 The Treaty of Washington, between Spain and the
United States (7 November 1900), transferring to the US  See e.g. Neri v. Senate Committee on Accountability of
20

the islands of Cagayan, Sulu, and Sibutu and the US- Public Officers and Investigations, G.R. No. 180643, 25
Great Britain Convention (2 January 1930) demarcating March 2008, 549 SCRA 77 (granting a writ of certiorari
boundary lines between the Philippines and North against the Philippine Senate and nullifying the Senate
Borneo. contempt order issued against petitioner).

13
 Article II, Section 7, Section 8, and Section 16.
21
 Rollo, p. 31.

 Allegedly in violation of Article XII, Section 2, paragraph

14 22
 Respondents state in their Comment that petitioners’
2 and Article XIII, Section 7 of the Constitution. theory "has not been accepted or recognized by either the
United States or Spain," the parties to the Treaty of Paris.
15
 Kilosbayan, Inc. v. Morato, 320 Phil. 171, 186 (1995). Respondents add that "no State is known to have
supported this proposition." Rollo, p. 179.
 Pascual v. Secretary of Public Works, 110 Phil. 331
16

(1960); Sanidad v. COMELEC, 165 Phil. 303 (1976).

23
 UNCLOS III belongs to that larger corpus of
international law of the sea, which petitioner Magallona
himself defined as "a body of treaty rules and customary
 Francisco, Jr. v. House of Representatives, 460 Phil.
17
norms governing the uses of the sea, the exploitation of
830, 899 (2003) citing Kilosbayan, Inc. v. Guingona, Jr.,
its resources, and the exercise of jurisdiction over
G.R. No. 113375, 5 May 1994, 232 SCRA 110, 155-156
maritime regimes. x x x x" (Merlin M. Magallona, Primer
(1995) (Feliciano, J., concurring). The two other factors
on the Law of the Sea 1 [1997]) (Italicization supplied).
are: "the character of funds or assets involved in the
controversy and a clear disregard of constitutional or
statutory prohibition." Id.
24
 Following Article 47 (1) of UNCLOS III which provides:

18
 . Rollo, pp. 144-147. An archipelagic State may draw straight
archipelagic baselines joining the outermost
 17

points of the outermost islands and drying 35

 Rollo, p. 159.
reefs of the archipelago provided that within
such baselines are included the main islands and 36
 Section 2, RA 9522.
an area in which the ratio of the area of the water
to the area of the land, including atolls, is between 37
 Article 121 provides: "Regime of islands. —
1 to 1 and 9 to 1. (Emphasis supplied)
1. An island is a naturally formed area of land,
25
 Under the United Nations Charter, use of force is no surrounded by water, which is above water at high
longer a valid means of acquiring territory. tide.

 The last paragraph of the preamble of UNCLOS III

26
2. Except as provided for in paragraph 3, the
states that "matters not regulated by this Convention territorial sea, the contiguous zone, the exclusive
continue to be governed by the rules and principles of economic zone and the continental shelf of an
general international law." island are determined in accordance with the
provisions of this Convention applicable to other
27
 Rollo, p. 51. land territory.
28
 Id. at 51-52, 64-66. 3. Rocks which cannot sustain human habitation
or economic life of their own shall have no
 Based on figures respondents submitted in their
29
exclusive economic zone or continental shelf."
Comment (id. at 182).
38
 Rollo, pp. 56-57, 60-64.
30
 Under Article 74.
39
 Paragraph 2, Section 2, Article XII of the Constitution
31
 See note 7. uses the term "archipelagic waters" separately from
"territorial sea." Under UNCLOS III, an archipelagic State
 Presidential Decree No. 1596 classifies the KIG as a
32 may have internal waters – such as those enclosed by
municipality of Palawan. closing lines across bays and mouths of rivers. See
Article 50, UNCLOS III. Moreover, Article 8 (2) of
 KIG lies around 80 nautical miles west of Palawan while
33 UNCLOS III provides: "Where the establishment of a
Scarborough Shoal is around 123 nautical west of straight baseline in accordance with the method set forth
Zambales. in article 7 has the effect of enclosing as internal
waters areas which had not previously been considered
as such, a right of innocent passage as provided in this
 Journal, Senate 14th Congress 44th Session 1416 (27
34
Convention shall exist in those waters." (Emphasis
January 2009).
supplied)
 18

40
 Mandated under Articles 52 and 53 of UNCLOS III: 4. Such sea lanes and air routes shall traverse the
archipelagic waters and the adjacent territorial sea and
Article 52. Right of innocent passage. — shall include all normal passage routes used as routes for
international navigation or overflight through or over
1. Subject to article 53 and without prejudice to article archipelagic waters and, within such routes, so far as
50, ships of all States enjoy the right of innocent ships are concerned, all normal navigational channels,
passage through archipelagic waters, in accordance provided that duplication of routes of similar convenience
with Part II, section 3. between the same entry and exit points shall not be
necessary.
2. The archipelagic State may, without discrimination in
form or in fact among foreign ships, suspend temporarily 5. Such sea lanes and air routes shall be defined by a
in specified areas of its archipelagic waters the innocent series of continuous axis lines from the entry points of
passage of foreign ships if such suspension is essential passage routes to the exit points. Ships and aircraft in
for the protection of its security. Such suspension shall archipelagic sea lanes passage shall not deviate more
take effect only after having been duly published. than 25 nautical miles to either side of such axis lines
(Emphasis supplied) during passage, provided that such ships and aircraft
shall not navigate closer to the coasts than 10 per cent of
the distance between the nearest points on islands
Article 53. Right of archipelagic sea lanes passage. —
bordering the sea lane.
1. An archipelagic State may designate sea lanes and air
6. An archipelagic State which designates sea lanes
routes thereabove, suitable for the continuous and
under this article may also prescribe traffic separation
expeditious passage of foreign ships and aircraft through
schemes for the safe passage of ships through narrow
or over its archipelagic waters and the adjacent territorial
channels in such sea lanes.
sea.
7. An archipelagic State may, when circumstances
2. All ships and aircraft enjoy the right of archipelagic
require, after giving due publicity thereto, substitute other
sea lanes passage in such sea lanes and air routes.
sea lanes or traffic separation schemes for any sea lanes
or traffic separation schemes previously designated or
3. Archipelagic sea lanes passage means the exercise in prescribed by it.
accordance with this Convention of the rights of
navigation and overflight in the normal mode solely for the
8. Such sea lanes and traffic separation schemes shall
purpose of continuous, expeditious and unobstructed
conform to generally accepted international regulations.
transit between one part of the high seas or an exclusive
economic zone and another part of the high seas or an
exclusive economic zone. 9. In designating or substituting sea lanes or prescribing
or substituting traffic separation schemes, an archipelagic
State shall refer proposals to the competent international
 19

organization with a view to their adoption. The passage through the territorial sea. (Emphasis
organization may adopt only such sea lanes and traffic supplied)
separation schemes as may be agreed with the
archipelagic State, after which the archipelagic State may Article 19. Meaning of innocent passage. —
designate, prescribe or substitute them.
1. Passage is innocent so long as it is not prejudicial to
10. The archipelagic State shall clearly indicate the axis of the peace, good order or security of the coastal State.
the sea lanes and the traffic separation schemes Such passage shall take place in conformity with this
designated or prescribed by it on charts to which due Convention and with other rules of international law.
publicity shall be given.
2. Passage of a foreign ship shall be considered to be
11. Ships in archipelagic sea lanes passage shall respect prejudicial to the peace, good order or security of the
applicable sea lanes and traffic separation schemes coastal State if in the territorial sea it engages in any of
established in accordance with this article. the following activities:

12. If an archipelagic State does not designate sea lanes (a) any threat or use of force against the sovereignty,
or air routes, the right of archipelagic sea lanes passage territorial integrity or political independence of the coastal
may be exercised through the routes normally used for State, or in any other manner in violation of the principles
international navigation. (Emphasis supplied) of international law embodied in the Charter of the United
Nations;
41
 Namely, House Bill No. 4153 and Senate Bill No. 2738,
identically titled "AN ACT TO ESTABLISH THE (b) any exercise or practice with weapons of any kind;
ARCHIPELAGIC SEA LANES IN THE PHILIPPINE
ARCHIPELAGIC WATERS, PRESCRIBING THE (c) any act aimed at collecting information to the prejudice
RIGHTS AND OBLIGATIONS OF FOREIGN SHIPS AND of the defence or security of the coastal State;
AIRCRAFTS EXERCISING THE RIGHT OF
ARCHIPELAGIC SEA LANES PASSAGE THROUGH
(d) any act of propaganda aimed at affecting the defence
THE ESTABLISHED ARCHIPELAGIC SEA LANES AND
or security of the coastal State;
PROVIDING FOR THE ASSOCIATED PROTECTIVE
MEASURES THEREIN."
(e) the launching, landing or taking on board of any
aircraft;
42
 The relevant provision of UNCLOS III provides:
(f) the launching, landing or taking on board of any
Article 17. Right of innocent passage. —
military device;
Subject to this Convention, ships of all States, whether
coastal or land-locked, enjoy the right of innocent
 20

(g) the loading or unloading of any commodity, currency (e) the prevention of infringement of the fisheries laws
or person contrary to the customs, fiscal, immigration or and regulations of the coastal State;
sanitary laws and regulations of the coastal State;
(f) the preservation of the environment of the coastal
(h) any act of willful and serious pollution contrary to this State and the prevention, reduction and control of
Convention; pollution thereof;

(i) any fishing activities; (g) marine scientific research and hydrographic surveys;

(j) the carrying out of research or survey activities; (h) the prevention of infringement of the customs, fiscal,
immigration or sanitary laws and regulations of the
(k) any act aimed at interfering with any systems of coastal State.
communication or any other facilities or installations of the
coastal State; 2. Such laws and regulations shall not apply to the
design, construction, manning or equipment of foreign
(l) any other activity not having a direct bearing on ships unless they are giving effect to generally accepted
passage international rules or standards.

Article 21. Laws and regulations of the coastal State 3. The coastal State shall give due publicity to all such
relating to innocent passage. — laws and regulations.

1. The coastal State may adopt laws and regulations, in 4. Foreign ships exercising the right of innocent passage
conformity with the provisions of this Convention and through the territorial sea shall comply with all such laws
other rules of international law, relating to innocent and regulations and all generally accepted international
passage through the territorial sea, in respect of all or any regulations relating to the prevention of collisions at sea.
of the following:
43
 The right of innocent passage through the territorial sea
(a) the safety of navigation and the regulation of maritime applies only to ships and not to aircrafts (Article 17,
traffic; UNCLOS III). The right of innocent passage of aircrafts
through the sovereign territory of a State arises only
(b) the protection of navigational aids and facilities and under an international agreement. In contrast, the right of
other facilities or installations; innocent passage through archipelagic waters applies to
both ships and aircrafts (Article 53 (12), UNCLOS III).
(c) the protection of cables and pipelines; 44
 Following Section 2, Article II of the Constitution:
"Section 2. The Philippines renounces war as an
(d) the conservation of the living resources of the sea;
instrument of national policy, adopts the generally
 21

accepted principles of international law as part of the Article 87. Freedom of the high seas. —
law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all 1. The high seas are open to all States, whether coastal
nations." (Emphasis supplied) or land-locked. Freedom of the high seas is exercised
under the conditions laid down by this Convention and by
 "Archipelagic sea lanes passage is essentially the same
45
other rules of international law. It comprises, inter alia,
as transit passage through straits" to which the territorial both for coastal and land-locked States:
sea of continental coastal State is subject. R.R. Churabill
and A.V. Lowe, The Law of the Sea 127 (1999). (a) freedom of navigation;
46
 Falling under Article 121 of UNCLOS III (see note 37). (b) freedom of overflight;
47
 Within the exclusive economic zone, other States enjoy (c) freedom to lay submarine cables and pipelines,
the following rights under UNCLOS III: subject to Part VI;

Article 58. Rights and duties of other States in the (d) freedom to construct artificial islands and other
exclusive economic zone. — installations permitted under international law, subject to
Part VI;
1. In the exclusive economic zone, all States, whether
coastal or land-locked, enjoy, subject to the relevant (e) freedom of fishing, subject to the conditions laid down
provisions of this Convention, the freedoms referred to in in section 2;
article 87 of navigation and overflight and of the laying of
submarine cables and pipelines, and other internationally (f) freedom of scientific research, subject to Parts VI and
lawful uses of the sea related to these freedoms, such as XIII.
those associated with the operation of ships, aircraft and
submarine cables and pipelines, and compatible with the
2. These freedoms shall be exercised by all States with
other provisions of this Convention.
due regard for the interests of other States in their
exercise of the freedom of the high seas, and also with
2. Articles 88 to 115 and other pertinent rules of due regard for the rights under this Convention with
international law apply to the exclusive economic zone in respect to activities in the Area.
so far as they are not incompatible with this Part.
48
 See note 13.
xxxx
 Kilosbayan, Inc. v. Morato, 316 Phil. 652, 698
49

Beyond the exclusive economic zone, other States enjoy (1995); Tañada v. Angara, 338 Phil. 546, 580-581 (1997).
the freedom of the high seas, defined under UNCLOS III
as follows:
 22

50
 G.R. No. 101083, 30 July 1993, 224 SCRA 792.
The Lawphil Project - Arellano Law Foundation
 "The State shall protect the nation’s marine wealth in its
51

archipelagic waters, territorial sea, and exclusive

economic zone, and reserve its use and enjoyment
exclusively to Filipino citizens." CONCURRING OPINION
52
 "The State shall protect the rights of subsistence VELASCO, JR., J.:
fishermen, especially of local communities, to the
preferential use of the communal marine and fishing
I concur with the ponencia and add the following complementary
resources, both inland and offshore. It shall provide
arguments and observations:
support to such fishermen through appropriate technology
and research, adequate financial, production, and
marketing assistance, and other services. The State shall A statute is a product of hard work and earnest studies of
also protect, develop, and conserve such resources. The Congress to ensure that no constitutional provision, prescription
protection shall extend to offshore fishing grounds of or concept is infringed. Withal, before a law, in an appropriate
subsistence fishermen against foreign intrusion. proceeding, is nullified, an unequivocal breach of, or a clear
Fishworkers shall receive a just share from their labor in conflict with, the Constitution must be demonstrated in such a
the utilization of marine and fishing resources." way as to leave no doubt in the mind of the Court. 1 In the same
token, if a law runs directly afoul of the Constitution, the Court’s
duty on the matter should be clear and simple: Pursuant to its
 This can extend up to 350 nautical miles if the coastal
53
judicial power and as final arbiter of all legal questions, 2 it should
State proves its right to claim an extended continental
strike such law down, however laudable its purpose/s might be
shelf (see UNCLOS III, Article 76, paragraphs 4(a), 5 and
and regardless of the deleterious effect such action may carry in
6, in relation to Article 77).
its wake.
54
 Rollo, pp. 67-69.
Challenged in these proceedings is the constitutionality of
Republic Act (RA 9522) entitled "An Act to Amend Certain
55
 Article 47 (1) provides: "An archipelagic State may draw Provisions of [RA] 3046, as Amended by [RA] 5446 to Define the
straight archipelagic baselines joining the outermost Archipelagic Baselines Of The Philippines and for Other
points of the outermost islands and drying reefs of the Purposes." For perspective, RA 3046, "An Act to Define the
archipelago provided that within such baselines are Baselines of the Territorial Sea of the Philippines, was enacted in
included the main islands and an area in which the ratio 1961 to comply with the United Nations Convention on the Law of
of the area of the water to the area of the land, including the Sea (UNCLOS) I. Eight years later, RA 5446 was enacted to
atolls, is between 1 to 1 and 9 to 1." (Emphasis supplied) amend typographical errors relating to coordinates in RA 3046.
in the Area. The latter law also added a provision asserting Philippine
sovereignty over Sabah.
 23

As its title suggests, RA 9522 delineates archipelagic baselines of xxxx

the country, amending in the process the old baselines law, RA
3046. Everybody is agreed that RA 9522 was enacted in 9. The archipelagic State shall give due publicity to such
response to the country’s commitment to conform to some 1982 charts or lists of geographical co-ordinates and shall
Law of the Sea Convention (LOSC) or UNCLOS III provisions to deposit a copy of each such chart or list with the
define new archipelagic baselines through legislation, the Secretary-General of the United Nations.6 (Emphasis
Philippines having signed3 and eventually ratified4 this multilateral added.)
treaty. The Court can take judicial notice that RA 9522 was
registered and deposited with the UN on April 4, 2009. To obviate, however, the possibility that certain UNCLOS III
baseline provisions would, in their implementation, undermine its
As indicated in its Preamble,5 1982 LOSC aims, among other sovereign and/or jurisdictional interests over what it considers its
things, to establish, with due regard for the sovereignty of all territory,7 the Philippines, when it signed UNCLOS III on
States, "a legal order for the seas and oceans which will facilitate December 10, 1982, made the following "Declaration" to said
international communication, and will promote the peaceful uses treaty:
of the seas and oceans." One of the measures to attain the order
adverted to is to have a rule on baselines. Of particular relevance The Government of the Republic of the Philippines [GRP] hereby
to the Philippines, as an archipelagic state, is Article 47 of manifests that in signing the 1982 United Nations Convention on
UNCLOS III which deals with baselines: the Law of the Sea, it does so with the understandings embodied
in this declaration, made under the provisions of Article 310 of the
1. An archipelagic State may draw straight archipelagic Convention, to wit:
baselines joining the outermost points of the outermost
islands and drying reefs of the archipelago provided that The signing of the Convention by the [GRP] shall not in any
within such baselines are included the main islands and manner impair or prejudice the sovereign rights of the [RP] under
an area in which the ratio of the area of the water to the and arising from the Constitution of the Philippines;
area of the land, including atolls, is between 1 to 1 and 9
to 1.
Such signing shall not in any manner affect the sovereign rights
of the [RP] as successor of the United States of America [USA],
2. The length of such baseline shall not exceed 100 under and arising out of the Treaty of Paris between Spain and
nautical miles, except that up to 3 per cent of the total the United States of America of December 10, 1898, and the
number of baselines enclosing any archipelago may Treaty of Washington between the [USA] and Great Britain of
exceed that length, up to a maximum length of 125 January 2, 1930;
nautical miles.
xxxx
3. The drawing of such baselines shall not depart to any
appreciable extent from the general configuration of the
Such signing shall not in any manner impair or prejudice the
archipelago.
sovereignty of the [RP] over any territory over which it exercises
 24

sovereign authority, such as the Kalayaan Islands, and the waters According to Fr. Joaquin Bernas, S.J., himself a member of the
appurtenant thereto; 1986 Constitutional Commission which drafted the 1987
Constitution, the aforequoted Section 1 on national territory was
The Convention shall not be construed as amending in any "in substance a copy of its 1973 counterpart."9 Art. I of the 1973
manner any pertinent laws and Presidential Decrees or Constitution reads:
Proclamations of the Republic of the Philippines. The [GRP]
maintains and reserves the right and authority to make any Section 1. The national territory comprises the Philippine
amendments to such laws, decrees or proclamations pursuant to archipelago, with all the islands and waters embraced therein,
the provisions of the Philippine Constitution; and all other territories belonging to the Philippines by historic
right or legal title, including the territorial sea, the air space, the
The provisions of the Convention on archipelagic passage subsoil, the insular shelves, and other submarine areas over
through sea lanes do not nullify or impair the sovereignty of the which the Philippines has sovereignty or jurisdiction. The waters
Philippines as an archipelagic state over the sea lanes and do not around, between, and connecting the islands of the archipelago,
deprive it of authority to enact legislation to protect its sovereignty regardless of their breadth and dimensions, form part of the
independence and security; internal waters of the Philippines. (Emphasis added.)

The concept of archipelagic waters is similar to the concept of As may be noted both constitutions speak of the "Philippine
internal waters under the Constitution of the Philippines, and archipelago," and, via the last sentence of their respective
removes straits connecting these waters with the economic zone provisions, assert the country’s adherence to the "archipelagic
or high sea from the rights of foreign vessels to transit passage principle." Both constitutions divide the national territory into two
for international navigation.8 (Emphasis added.) main groups: (1) the Philippine archipelago and (2) other
territories belonging to the Philippines. So what or where is
Petitioners challenge the constitutionality of RA 9522 on the Philippine archipelago contemplated in the 1973 and 1987
principal ground that the law violates Section 1, Article I of the Constitutions then? Fr. Bernas answers the poser in the following
1987 Constitution on national territory which states: wise:

Section 1. The national territory comprises the Philippine Article I of the 1987 Constitution cannot be fully understood
archipelago, with all the islands and waters embraced therein, without reference to Article I of the 1973 Constitution. x x x
and all other territories over which the Philippines has sovereignty
or jurisdiction, consisting of its terrestrial, fluvial and aerial xxxx
domains, including its territorial sea, the seabed, the subsoil, the
insular shelves, and other submarine areas. The waters around, x x x To understand [the meaning of national territory as
between, and connecting the islands of the archipelago, comprising the Philippine archipelago], one must look into the
regardless of their breadth and dimensions, form part of the evolution of [Art. I of the 1973 Constitution] from its first draft to its
internal waters of the Philippines. (Emphasis supplied.) final form.
 25

Section 1 of the first draft submitted by the Committee on When the [US] Government enacted the Jones Law, the Hare-
National Territory almost literally reproduced Article I of the 1935 Hawes Cutting Law and the Tydings McDuffie Law, it in reality
Constitution x x x. Unlike the 1935 version, however, the draft announced to the whole world that it was turning over to the
designated the Philippines not simply as the Philippines but as Government of the Philippine Islands an archipelago (that is a big
"the Philippine archipelago. 10 In response to the criticism that the body of water studded with islands), the boundaries of which
definition was colonial in tone x x x, the second draft further archipelago are set forth in Article III of the Treaty of Paris. It also
designated the Philippine archipelago, as the historic home of the announced to the whole world that the waters inside the giant
Filipino people from its beginning. 11 rectangle belong to the Philippines – that they are not part of the
high seas.
After debates x x x, the Committee reported out a final draft,
which became the initially approved version: "The national When Spain signed the Treaty of Paris, in effect she announced
territory consists of the Philippine archipelago which is the to the whole world that she was ceding to the [US] the Philippine
ancestral home of the Filipino people and which is composed of archipelago x x x, that this archipelago was bounded by lines
all the islands and waters embraced therein…" specified in the treaty, and that the archipelago consisted of the
huge body of water inside the boundaries and the islands inside
What was the intent behind the designation of the Philippines as said boundaries.
an "archipelago"? x x x Asked by Delegate Roselller Lim
(Zamboanga) where this archipelago was, Committee Chairman The delineation of the extent of the Philippine archipelago must
Quintero answered that it was the area delineated in the Treaty of be understood in the context of the modifications made both by
Paris. He said that objections to the colonial implication of the Treaty of Washington of November 7, 1900, and of the
mentioning the Treaty of Paris was responsible for the omission Convention of January 12, 1930, in order to include the Islands of
of the express mention of the Treaty of Paris. Sibutu and of Cagayan de Sulu and the Turtle and Mangsee
Islands. However, x x x the definition of the archipelago did not
Report No. 01 of the Committee on National Territory had in fact include the Batanes group[, being] outside the boundaries of the
been explicit in its delineation of the expanse of this archipelago. Philippine archipelago as set forth in the Treaty of Paris. In literal
It said: terms, therefore, the Batanes islands would come not under the
Philippine archipelago but under the phrase "all other territories
Now if we plot on a map the boundaries of this archipelago as set belong to the Philippines."12 x x x (Emphasis added.)
forth in the Treaty of Paris, a huge or giant rectangle will emerge,
measuring about 600 miles in width and 1,200 miles in length. From the foregoing discussions on the deliberations of the
Inside this giant rectangle are the 7,100 islands comprising the provisions on national territory, the following conclusion is
Philippine Islands. From the east coast of Luzon to the eastern abundantly evident: the "Philippine archipelago" of the 1987
boundary of this huge rectangle in the Pacific Ocean, there is a Constitution is the same "Philippine archipelago" referred to in
distance of over 300 miles. From the west coast of Luzon to the Art. I of the 1973 Constitution which in turn corresponds to the
western boundary of this giant rectangle in the China sea, there is territory defined and described in Art. 1 of the 1935
a distance of over 150 miles. Constitution,13 which pertinently reads:
 26

Section 1. The Philippines comprises all the territory ceded to the on or dismembers the national territory. Pushing their case,
[US] by the Treaty of Paris concluded between the [US] and petitioners argue that the constitutional definition of the national
Spain on the tenth day of December, [1898], the limits of which territory cannot be remade by a mere statutory act.20 As another
are set forth in Article III of said treaty, together with all the point, petitioners parlay the theory that the law in question
islands in the treaty concluded at Washington, between the [US] virtually weakens the country’s territorial claim over the Kalayaan
and Spain on November [7, 1900] and the treaty concluded Island Group (KIG) and Sabah, both of which come under the
between the [US] and Great Britain x x x. category of "other territories" over the Philippines has sovereignty
or jurisdiction. Petitioners would also assail the law on grounds
While the Treaty of Paris is not mentioned in both the 1973 and related to territorial sea lanes and internal waters transit passage
1987 Constitutions, its mention, so the nationalistic arguments by foreign vessels.
went, being "a repulsive reminder of the indignity of our colonial
past,"14 it is at once clear that the Treaty of Paris had been utilized It is remarkable that petitioners could seriously argue that RA
as key reference point in the definition of the national territory. 9522 revises the Philippine territory as defined in the Constitution,
or worse, constitutes an abdication of territory.
On the other hand, the phrase "all other territories over which the
Philippines has sovereignty or jurisdiction," found in the 1987 It cannot be over-emphasized enough that RA 9522 is a baseline
Constitution, which replaced the deleted phrase "all territories law enacted to implement the 1982 LOSC, which in turn seeks to
belonging to the Philippines by historic right or legal title" 15 found regulate and establish an orderly sea use rights over maritime
in the 1973 Constitution, covers areas linked to the Philippines zones. Or as the ponencia aptly states, RA 9522 aims to mark-
with varying degrees of certainty. 16 Under this category would fall: out specific base points along the Philippine coast from which
(a) Batanes, which then 1971 Convention Delegate Eduardo baselines are drawn to serve as starting points to measure the
Quintero, Chairperson of the Committee on National Territory, breadth of the territorial sea and maritime zones.21 The baselines
described as belonging to the Philippines in all its history; 17 (b) are set to define the sea limits of a state, be it coastal or
Sabah, over which a formal claim had been filed, the so-called archipelagic, under the UNCLOS III regime. By setting the
Freedomland (a group of islands known as Spratleys); and (c) baselines to conform to the prescriptions of UNCLOS III, RA 9522
any other territory, over which the Philippines had filed a claim or did not surrender any territory, as petitioners would insist at every
might acquire in the future through recognized modes of acquiring turn, for UNCLOS III is concerned with setting order in the
territory.18 As an author puts it, the deletion of the words "by exercise of sea-use rights, not the acquisition or cession of
historic right or legal title" is not to be interpreted as precluding territory. And let it be noted that under UNCLOS III, it is
future claims to areas over which the Philippines does not recognized that countries can have territories outside their
actually exercise sovereignty.19 baselines. Far from having a dismembering effect, then, RA 9522
has in a limited but real sense increased the country’s maritime
Upon the foregoing perspective and going into specifics, boundaries. How this situation comes about was extensively
petitioners would have RA 9522 stricken down as unconstitutional explained by then Minister of State and head of the Philippine
for the reasons that it deprives the Philippines of what has long delegation to UNCLOS III Arturo Tolentino in his sponsorship
been established as part and parcel of its national territory under speech22on the concurrence of the Batasang Pambansa with the
the Treaty of Paris, as supplemented by the aforementioned 1900 LOSC:
Treaty of Washington or, to the same effect, revises the definition
 27

xxxx maritime waters are measured. Thus, the territorial sea, a

marginal belt of maritime waters, is measured from the baselines
Then, we should consider, Mr. Speaker, that under the extending twelve (12) nautical miles outward.23 Similarly, Art. 57
archipelagic principle, the whole area inside the archipelagic base of the 1982 LOSC provides that the Exclusive Economic Zone
lines become a unified whole and the waters between the islands (EEZ) "shall not extend beyond 200 nautical miles from the
which formerly were regarded by international law as open or baselines from which the breadth of the territorial sea is
international seas now become waters under the complete measured."24 Most important to note is that the baselines
sovereignty of the Filipino people. In this light there would be an indicated under RA 9522 are derived from Art. 47 of the 1982
additional area of 141,800 square nautical miles inside the base LOSC which was earlier quoted.
lines that will be recognized by international law as Philippine
waters, equivalent to 45,351,050 hectares. These gains in the Since the 1987 Constitution’s definition of national territory does
waters of the sea, 45,211,225 hectares outside the base lines not delimit where the Philippine’s baselines are located, it is up to
and 141,531,000 hectares inside the base lines, total 93,742,275 the political branches of the government to supply the deficiency.
hectares as a total gain in the waters under Philippine jurisdiction. Through Congress, the Philippines has taken an official position
regarding its baselines to the international community through RA
From a pragmatic standpoint, therefore, the advantage to our 3046,25as amended by RA 544626 and RA 9522. When the
country and people not only in terms of the legal unification of Philippines deposited a copy of RA 9522 with the UN Secretary
land and waters of the archipelago in the light of international law, General, we effectively complied in good faith with our obligation
but also in terms of the vast resources that will come under the under the 1982 LOSC. A declaration by the Court of the
dominion and jurisdiction of the Republic of the Philippines, your constitutionality of the law will complete the bona fides of the
Committee on Foreign Affairs does not hesitate to ask this august Philippines vis-a-vis the law of the sea treaty.
Body to concur in the Convention by approving the resolution
before us today. It may be that baseline provisions of UNCLOS III, if strictly
implemented, may have an imposing impact on the signatory
May I say it was the unanimous view of delegations at the states’ jurisdiction and even their sovereignty. But this actuality,
Conference on the Law of the Sea that archipelagos are among without more, can hardly provide a justifying dimension to nullify
the biggest gainers or beneficiaries under the Convention on the the complying RA 9522. As held by the Court in Bayan Muna v.
Law of the Sea. Romulo,27 treaties and international agreements have a limiting
effect on the otherwise encompassing and absolute nature of
Lest it be overlooked, the constitutional provision on national sovereignty. By their voluntary acts, states may decide to
territory, as couched, is broad enough to encompass RA 9522’s surrender or waive some aspects of their sovereignty. The usual
definition of the archipelagic baselines. To reiterate, the laying underlying consideration in this partial surrender may be the
down of baselines is not a mode of acquiring or asserting greater benefits derived from a pact or reciprocal undertaking. On
ownership a territory over which a state exercises sovereignty. the premise that the Philippines has adopted the generally
They are drawn for the purpose of defining or establishing the accepted principles of international law as part of the law of the
maritime areas over which a state can exercise sovereign rights. land, a portion of sovereignty may be waived without violating the
Baselines are used for fixing starting point from which the Constitution.
territorial belt is measured seawards or from which the adjacent
 28

As a signatory of the 1982 LOSC, it behooves the Philippines to these areas. Art. 46 of UNCLOS III in fact recognizes that an
honor its obligations thereunder. Pacta sunt servanda, a basic archipelagic state, such as the Philippines, is a state "constituted
international law postulate that "every treaty in force is binding wholly by one or more archipelagos and may include other
upon the parties to it and must be performed by them in good islands." (emphasis supplied) The "other islands" referred to in
faith."28 The exacting imperative of this principle is such that a Art. 46 are doubtless islands not forming part of the archipelago
state may not invoke provisions in its constitution or its laws as an but are nevertheless part of the state’s territory.
excuse for failure to perform this duty."29
The Philippines’ sovereignty over KIG and Scarborough Shoal
The allegation that Sabah has been surrendered by virtue of RA are, thus, in no way diminished. Consider: Other countries such
9522, which supposedly repealed the hereunder provision of RA as Malaysia and the United States have territories that are
5446, is likewise unfounded. located outside its baselines, yet there is no territorial question
arising from this arrangement. 30
Section 2. The definition of the baselines of the territorial sea of
the Philippine Archipelago as provided in this Act is without It may well be apropos to point out that the Senate version of the
prejudice to the delineation of the baselines of the territorial sea baseline bill that would become RA 9522 contained the following
around the territory of Sabah, situated in North Borneo, over explanatory note: The law "reiterates our sovereignty over the
which the Republic of the Philippines has acquired dominion and Kalayaan Group of Islands declared as part of the Philippine
sovereignty. territory under Presidential Decree No. 1596. As part of the
Philippine territory, they shall be considered as a ‘regime of
There is nothing in RA 9522 indicating a clear intention to islands’ under Article 121 of the Convention." 31 Thus, instead of
supersede Sec. 2 of RA 5446. Petitioners obviously have read being in the nature of a "treasonous surrender" that petitioners
too much into RA 9522’s amendment on the baselines found in have described it to be, RA 9522 even harmonizes our baseline
an older law. Aside from setting the country’s baselines, RA 9522 laws with our international agreements, without limiting our
is, in its Sec. 3, quite explicit in its reiteration of the Philippines’ territory to those confined within the country’s baselines.
exercise of sovereignty, thus:
Contrary to petitioners’ contention, the classification of KIG and
Section 3. This Act affirms that the Republic of the Philippines the Scarborough Shoal as falling under the Philippine’s regime of
has dominion, sovereignty and jurisdiction over all portions of the islands is not constitutionally objectionable. Such a classification
national territory as defined in the Constitution and by provisions serves as compliance with LOSC and the Philippines’ assertion of
of applicable laws including, without limitation, Republic Act No. sovereignty over KIG and Scarborough Shoal. In setting the
7160, otherwise known as the Local Government Code of 1991, baseline in KIG and Scarborough Shoal, RA 9522 states that
as amended. these are areas "over which the Philippines likewise exercises
sovereignty and jurisdiction." It is, thus, not correct for petitioners
To emphasize, baselines are used to measure the breadth of the to claim that the Philippines has lost 15,000 square nautical miles
territorial sea, the contiguous zone, the exclusive economic zone of territorial waters upon making this classification. Having 15,000
and the continental shelf. Having KIG and the Scarborough Shoal square nautical miles of Philippine waters outside of our
outside Philippine baselines will not diminish our sovereignty over baselines, to reiterate, does not translate to a surrender of these
waters. The Philippines maintains its assertion of ownership over
 29

territories outside of its baselines. Even China views RA 9522 as The adverted Sec. 8, Art. II of the 1987 Constitution declares the
an assertion of ownership, as seen in its Protest32 filed with the adoption and pursuit by the Philippines of "a policy of freedom
UN Secretary-General upon the deposit of RA 9522. from nuclear weapons in its territory." On the other hand, the
succeeding Sec. l6 underscores the State’s firm commitment "to
We take judicial notice of the effective occupation of KIG by the protect and advance the right of the people to a balanced and
Philippines. Petitioners even point out that national and local healthful ecology in accord with the rhythm and harmony of
elections are regularly held there. The classification of KIG as nature." Following the allegations of petitioners, these twin
under a "regime of islands" does not in any manner affect the provisions will supposedly be violated inasmuch as RA 9522
Philippines’ consistent position with regard to sovereignty over accedes to the right of innocent passage and the right of
KIG. It does not affect the Philippines’ other acts of ownership archipelagic sea-lane passage provided under the LOSC.
such as occupation or amend Presidential Decree No. 1596, Therefore, ships of all nations––be they nuclear-carrying
which declared KIG as a municipality of Palawan. warships or neutral commercial vessels transporting goods––can
assert the right to traverse the waters within our islands.
The fact that the baselines of KIG and Scarborough Shoal have
yet to be defined would not detract to the constitutionality of the A cursory reading of RA 9522 would belie petitioners’ posture. In
law in question. The resolution of the problem lies with the context, RA 9522 simply seeks to conform to our international
political departments of the government. agreement on the setting of baselines and provides nothing about
the designation of archipelagic sea-lane passage or the
All told, the concerns raised by the petitioners about the regulation of innocent passage within our waters. Again,
diminution or the virtual dismemberment of the Philippine territory petitioners have read into the amendatory RA 9522 something
by the enactment of RA 9522 are, to me, not well grounded. To not intended.
repeat, UNCLOS III pertains to a law on the seas, not territory. As
part of its Preamble,33 LOSC recognizes "the desirability of Indeed, the 1982 LOSC enumerates the rights and obligations of
establishing through this Convention, with due regard for the archipelagic party-states in terms of transit under Arts. 51 to 53,
sovereignty of all States, a legal order for the seas and oceans x which are explained below:
x x."
To safeguard, in explicit terms, the general balance struck by
This brings me to the matter of transit passage of foreign vessels [Articles 51 and 52] between the need for passage through the
through Philippine waters. area (other than straits used for international navigation) and the
archipelagic state’s need for security, Article 53 gave the
Apropos thereto, petitioners allege that RA 9522 violates the archipelagic state the right to regulate where and how ships and
nuclear weapons-free policy under Sec. 8, in relation to Sec. 16, aircraft pass through its territory by designating specific sea
Art. II of the Constitution, and exposes the Philippines to marine lanes. Rights of passage through these archipelagic sea lanes
pollution hazards, since under the LOSC the Philippines are regarded as those of transit passage:
supposedly must give to ships of all states the right of innocent
passage and the right of archipelagic sea-lane passage. (1) An archipelagic State may designate sea lanes and air
routes thereabove, suitable for safe, continuous and
expeditious passage of foreign ships and aircraft through
 30

or over its archipelagic waters and the adjacent territorial x x x On the ground of the above considerations, the
sea. Government states that all waters around, between and
connecting, the islands or parts of islands belonging to
(2) All ships and aircraft enjoy the right of archipelagic sea the Indonesian archipelago irrespective of their width or
lanes passage in such sea lanes and air routes. dimension are natural appurtenances of its land territory
and therefore an integral part of the inland or national
(3) Archipelagic sea lanes passage is the exercise in waters subject to the absolute sovereignty of
accordance with the present Convention of the rights of Indonesia.39 (Emphasis supplied.)
navigation and overflight in the normal mode solely for the
purpose of continuous, expeditious and unobstructed Hence, the Philippines maintains the sui generis
transit between one part of the high seas or an exclusive character of our archipelagic waters as equivalent to the
economic zone and another part of the high seas or an internal waters of continental coastal states. In other
exclusive economic zone.34 words, the landward waters embraced within the
baselines determined by RA 9522, i.e., all waters around,
But owing to the geographic structure and physical features of the between, and connecting the islands of the archipelago,
country, i.e., where it is "essentially a body of water studded with regardless of their breadth and dimensions, form part of
islands, rather than islands with water around them," 35 the the internal waters of the Philippines. 40Accordingly, such
Philippines has consistently maintained the conceptual unity of waters are not covered by the jurisdiction of the LOSC
land and water as a necessary element for territorial and cannot be subjected to the rights granted to foreign
integrity,36 national security (which may be compromised by the states in archipelagic waters, e.g., the right of innocent
presence of warships and surveillance ships on waters between passage,41 which is allowed only in the territorial seas, or
the islands),37and the preservation of its maritime resources. As that area of the ocean comprising 12 miles from the
succinctly explained by Minister Arturo Tolentino, the essence of baselines of our archipelago; archipelagic sea-lane
the archipelagic concept is "the dominion and sovereignty of the passage;42 over flight;43 and traditional fishing rights.44
archipelagic State within its baselines, which were so drawn as to
preserve the territorial integrity of the archipelago by the Our position that all waters within our baselines are
inseparable unity of the land and water domain." 38 Indonesia, like internal waters, which are outside the jurisdiction of the
the Philippines, in terms of geographic reality, has expressed 1982 LOSC,45 was abundantly made clear by the
agreement with this interpretation of the archipelagic concept. So Philippine Declaration at the time of the signing of the
it was that in 1957, the Indonesian Government issued the LOSC on December 10, 1982. To reiterate, paragraphs 5,
Djuanda Declaration, therein stating : 6 and 7 of the Declaration state:

[H]istorically, the Indonesian archipelago has been an entity since 5. The Convention shall not be construed as amending in
time immemorial.  In view of the territorial entirety and of
1avvphi1
any manner any pertinent laws and Presidential decrees
preserving the wealth of the Indonesian state, it is deemed of Proclamation of the republic of the Philippines; the
necessary to consider all waters between the islands and entire Government x x x maintains and reserves the right and
entity. authority to make any amendments to such laws, decrees
 31

or proclamations pursuant to the provisions of the a right, but may be granted by the Philippines to foreign states but
Philippine Constitution; only as a dissolvable privilege.

6. The provisions of the Convention on archipelagic In view of the foregoing, I vote to DISMISS the Petition.
passage through sea lanes do not nullify or impair the
sovereignty of the Philippines as an archipelagic State PRESBITERO J. VELASCO, JR.
over the sea lanes and do not deprive it of authority to Associate Justice
enact legislation to protect its sovereignty, independence
and security;

7. The concept of archipelagic waters is similar to the

concept of internal waters under the Constitution of the
Philippines and removes straits connecting this water with
the economic zone or high seas from the rights of foreign
vessels to transit passage for international navigation.
(Emphasis supplied.)46

More importantly, by the ratification of the 1987 Constitution on

February 2, 1987, the integrity of the Philippine state as
comprising both water and land was strengthened by the proviso
in its first article, viz: "The waters around, between, and
connecting the islands of the [Philippine] archipelago, regardless
of their breadth and dimensions, form part of the internal waters
of the Philippines. (emphasis supplied)

In effect, contrary to petitioners’ allegations, the Philippines’

ratification of the 1982 LOSC did not matter-of-factly open our
internal waters to passage by foreign ships, either in the concept
of innocent passage or archipelagic sea-lane passage, in
exchange for the international community’s recognition of the
Philippines as an archipelagic state. The Filipino people, by
ratifying the 1987 Constitution, veritably rejected the quid pro quo
petitioners take as being subsumed in that treaty.

Harmonized with the Declaration and the Constitution, the

designation of baselines made in RA 9522 likewise designates
our internal waters, through which passage by foreign ships is not