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Merlin Magallona vs Secretary Eduardo Ermita

655 SCRA 476 Political Law National Territory RA 9522 is Constitutional


In March 2009, Republic Act 9522, an act defining the archipelagic baselines of the Philippines was
enacted the law is also known as the Baselines Law. This law was meant to comply with the terms of
the third United Nations Convention on the Law of the Sea (UNCLOS III), ratified by the Philippines in
February 1984.
Professor Merlin Magallona et al questioned the validity of RA 9522 as they contend, among others, that
the law decreased the national territory of the Philippines hence the law is unconstitutional. Some of their
particular arguments are as follows:
a. the law abandoned the demarcation set by the Treaty of Paris and other ancillary treaties this also
resulted to the exclusion of our claim over Sabah;
b. the law, as well as UNCLOS itself, terms the Philippine waters a archipelagic waters which, in
international law, opens our waters landward of the baselines to maritime passage by all vessels (innocent
passage) and aircrafts (overflight), undermining Philippine sovereignty and national security,
contravening the countrys nuclear-free policy, and damaging marine resources, in violation of relevant
constitutional provisions;
c. the classification of the Kalayaan Island Group (KIG), as well as the Scarborough Shoal ( bajo de
masinloc), as a regime of islands pursuant to UNCLOS results in the loss of a large maritime area but
also prejudices the livelihood of subsistence fishermen.
ISSUE: Whether or not the contentions of Magallona et al are tenable.
HELD: No. The Supreme Court emphasized that RA 9522, or UNCLOS, itself is not a means to acquire,
or lose, territory. The treaty and the baseline law has nothing to do with the acquisition, enlargement, or
diminution of the Philippine territory. What controls when it comes to acquisition or loss of territory is the
international law principle on occupation, accretion, cession and prescription and NOT the execution
of multilateral treaties on the regulations of sea-use rights or enacting statutes to comply with the treatys
terms to delimit maritime zones and continental shelves.
The law did not decrease the demarcation of our territory. In fact it increased it. Under the old law
amended by RA 9522 (RA 3046), we adhered with the rectangular lines enclosing the Philippines. The
area that it covered was 440,994 square nautical miles (sq. na. mi.). But under 9522, and with the
inclusion of the exclusive economic zone, the extent of our maritime are increased to 586,210 sq. na. mi.
(See image below for comparison)
If any, the baselines law is a notice to the international community of the scope of the maritime space and
submarine areas within which States parties exercise treaty-based rights.

Anent their particular contentions:


a. The law did not abandon the Sabah claim. This is evident on the provision of Section 2 of RA 9522:
Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided
in this Act is without prejudice to the delineation of the baselines of the territorial sea around the
territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired
dominion and sovereignty.
b. UNCLOS may term our waters as archipelagic waters and that we may term it as our internal
waters, but the bottom line is that our country exercises sovereignty over these waters and UNCLOS
itself recognizes that. However, due to our observance of international law, we allow the exercise of
others of their right of innocent passage. No modern State can validly invoke its sovereignty to absolutely

forbid innocent passage that is exercised in accordance with customary international law without risking
retaliatory measures from the international community.
c. The classification of the KIG (or the Spratlys), as well as the Scarborough Shoal, as a regime of islands
did not diminish our maritime area. Under UNCLOS and under the baselines law, since they are regimes
of islands, they generate their own maritime zones in short, they are not to be enclosed within the
baselines of the main archipelago (which is the Philippine Island group). This is because if we do that,
then we will be enclosing a larger area which would already depart from the provisions of UNCLOS
that the demarcation should follow the natural contour of the archipelago.
Nevertheless, we still continue to lay claim over the KIG and the Scarborough Shoal through effective
occupation.
NOTES:
Under UNCLOS and the baselines law, we have three levels of maritime zones where we exercise treatybased rights:
a. territorial waters 12 nautical miles from the baselines; where we exercise sovereignty
b. contiguous zone 24 nautical miles from the baselines; jurisdiction where we can enforce customs,
fiscal, immigration, and sanitation laws (CFIS).
c. exclusive economic zone 200 nautical miles from the baselines; where we have the right to exploit the
living and non-living resources in the exclusive economic zone
Note: a fourth zone may be added which is the continental shelf this is covered by Article 77 of the
UNCLOS.

KALAYAAN GROUP OF ISLANDS


Islands.
Article 121. Regime of islands

1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.
2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone and the continental shelf of an island are
determined in accordance with the provisions of the Convention applicable to other land territory.
3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or
continental shelf.
Islands can be very important because of the possibility of exploiting oil and gas resources around them. This explains the
controversy over Spratleys. It is noteworthy that islands can have their own territorial sea, exclusive economic zone and
continental shelf. However, rocks which cannot sustain human habitation or economic life only have a territorial sea.
But there is no clear international law definition of economic life referred to in n. 3.
Artificial islands or installations are not islands in the sense of Article 121. However, coastal states may establish safety
zones around artificial islands and prescribe safety measures around them. (Article 60[4] and [5])

International Law Reconsidered: Is International Law Actually Law?

While in many cases it serves as a stabilizing factor in the international system, and can even be
called a force for good, international law cannot be considered law when applied to states or state
action. To be considered law these principles and decisions require enforcement mechanisms that
go beyond state consent or the trust and goodwill among parties to a treaty. Law must also create a
true obligation rather than serve as a convenient means to an end as it does for most states in the
current system.
As it stands now, states obligations are outlined in treaties and customs, but enforcement relies on
vague clauses and empty threats found within the documents, or in international bodies like the UN
Security Council (UNSC) where power asymmetries grant the more powerful states significant
influence. Consent is very important, but international laws status as law cannot rest on consent
alone. As rational, unitary actors, states make decisions that are in their best interests, and more
often than not, consenting to various conventions and treaties is in a states interest, but that consent
can be rescinded as soon as the states priorities change or a better option appears. When
considering the sources of international law, one finds that general principles are usually shifting and
too vague to form the basis of an international legal system; customary law is based on state practice
and opinio juris which can be mistakenly ascribed to a state merely taking a course of action
because it is convenient for the time being; and treaties are only enforceable so long as one party or
group of parties is strong enough to impose compliance on another. Examples of the latter can be
found during the decades when Cold War rivalries held the UNSC hostage. It is at times like these
when the system more closely resembles a political protection racket than an international legal
regime.

TANADA v. ANGARA
October 26, 2012 Leave a comment

272 SCRA 18, May 2, 1997

Facts :
This is a petition seeking to nullify the Philippine ratification of the World Trade Organization (WTO)

Agreement. Petitioners question the concurrence of herein respondents acting in their capacities as
Senators via signing the said agreement.

The WTO opens access to foreign markets, especially its major trading partners, through the reduction
of tariffs on its exports, particularly agricultural and industrial products. Thus, provides new
opportunities for the service sector cost and uncertainty associated with exporting and more
investment in the country. These are the predicted benefits as reflected in the agreement and as
viewed by the signatory Senators, a free market espoused by WTO.

Petitioners on the other hand viewed the WTO agreement as one that limits, restricts and impair
Philippine economic sovereignty and legislative power. That the Filipino First policy of the Constitution
was taken for granted as it gives foreign trading intervention.

Issue : Whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the Senate in giving its concurrence of the said WTO agreement.

Held:
In its Declaration of Principles and state policies, the Constitution adopts the generally accepted
principles of international law as part of the law of the land, and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity , with all nations. By the doctrine of incorporation,
the country is bound by generally accepted principles of international law, which are considered
automatically part of our own laws. Pacta sunt servanda international agreements must be performed
in good faith. A treaty is not a mere moral obligation but creates a legally binding obligation on the
parties.
Through WTO the sovereignty of the state cannot in fact and reality be considered as absolute because
it is a regulation of commercial relations among nations. Such as when Philippines joined the United
Nations (UN) it consented to restrict its sovereignty right under the concept of sovereignty as
autolimitation. What Senate did was a valid exercise of authority. As to determine whether such
exercise is wise, beneficial or viable is outside the realm of judicial inquiry and review. The act of

signing the said agreement is not a legislative restriction as WTO allows withdrawal of membership
should this be the political desire of a member. Also, it should not be viewed as a limitation of
economic sovereignty. WTO remains as the only viable structure for multilateral trading and the
veritable forum for the development of international trade law. Its alternative is isolation, stagnation if
not economic self-destruction. Thus, the people be allowed, through their duly elected officers, make
their free choice.
Petition is DISMISSED for lack of merit

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

a fortiori - according to Webster: "with greater reason or more convincing


force -- used in drawing a conclusion that is inferred to be even more certain
than another."
Example: If it is a violation of the sending state's rights to arrest its consular
official, then a fortiori it would be a violation to arrest its ambassador.
a posteriori - from effect to cause; from particular to general; inductive (based
on observation or experience).
a priori - from cause to effect; from generalization to particular; deductive;
presupposed by or reasoning from self-evident propositions (based on theory
rather than practice).
amicus curiae - "friend of the court"; a person with a strong interest in or
views on the subject matter of a given legal action may petition the court for
permission to file a brief, ostensibly on behalf of a party but actually to suggest
a rationale consistent with its own views. Such amicus curiae briefs are
commonly filed in appeals concerning matters of a broad public interest.

Example: NPC of Iran v. M/T Stolt Sheaf case


contra legem - "against the law" (term used to describe an equitable decision
of a court or tribunal that is contrary to the law governing the controversy.
Such a decision would not normally be permitted unless the tribunal had been
empowered to act ex aequo et bono). As opposed to intra legem.
de facto - in fact (as opposed to in law, de jure)
de lege ferenda - what the law ought to be (as opposed to what the law
is, lex lata).
de lege lata - what the law is (as opposed to what the law ought to be, de
lege ferenda).
de jure - in law (as opposed to in fact, de facto).
erga omnes - "toward all" wrongful acts that harm everyone and not simply
one injured party)
estoppel - the requirement of consistency in legal argumentation. "You can't
have it both ways." That is: "You can't have your cake and eat it, too."
Hypothetical example: Party A cannot claim a right from Party B if Party A
previously took actions or made statements that were contrary to the current
claims and which led Party B to take an action that is the subject of the current
claim.
Case illustrations: the Tinoco Claims Arbitration and the Eastern
Greenland case
ex aequo et bono - a judgment based on considerations of fairness, not on
considerations of existing law. Such a judgment is rendered "beside" or
"against the law" (praeter legem or contra legem), not within the law (infra
legem or intra legem).
Example: Article 38(2) of the I.C.J. Statute permits the Court to render a
judgment on these grounds
ex propio motu - on its own accord.

inter alia - among other things.


intra fauces terra - "in the jaws of the land." a principle for defining territorial
seas.
intra legem - "within the law" (term used to describe an equitable decision of
a court or tribunal that is consistent with the rules of law governing the
controversy). As opposed to contra legem.
ipso facto - by the fact (or act) itself.
jus inter gentes - "law among peoples" (nations).
jus civile - law created within each country.
Jus civile is one of two categories of law in formal Roman law, along with jus
gentium.
jus cogens - "compelling law," peremptory principles of international law that
cannot be overriden by specific treaties between countries; that is: norms that
admit of no derogation; they are binding on all states at all times (e.g.,
prohibitions on aggression, slavery, and genocide)..
jus gentium - "law of peoples" or "law of tribes," a body of law developed by
a Roman praetor peregrinus; applied to non-Romans in the Empire and to
dealings between Romans and non-Romans.
Jus gentium is one of two categories of law in formal Roman law, along
with jus civile.
jus naturale - law of nature.
the classical Greeks originated the "natural law" idea, but it was greatly
elaborated upon by the Romans, including Marcus Aurelius and Cicero;
natural law scholars argue that law has a metaphysical source (God, nature)
and is apprehensible by rational humans; the law transcends tiem, place, and
circumstance
jus sanguines - the "right of blood" or "law of descent" - at birth an individual
acquires the nationality of her or his parents. In contrast to jus soli.

jus soli - the "law (or right) of the soil" - the legal principle that an individual's
nationality is determined by that person's place of birth (that is, the territory of
a given state)
Contrast to jus sanguines
lacunae - "holes" in the law; a gap or blank in a writing.
lex communis - the common law; the body of law developed by human
practice.
lex lata - what the law is (as opposed to what the law ought to be, de lege
ferenda).
lex posterior derogat priori - more recent law prevails over (abrogrates,
overrrules, trumps) an inconsistent earlier law. One test that is applied in
circumstances when (1) both customary and treaty sources of law exist and
(2) these two sources cannot be construed consistently.
Contrast to lex specialis derogat generali .
lex scripta - written, "black letter" law
lex specialis derogat generali - specific law prevails over (abrogrates,
overrrules, trumps) general law. One test that is applied in circumstances
when (1) both customary and treaty sources of law exist and (2) these two
sources cannot be construed consistently.
Contrast to lex posterior derogat priori.
locus delicti - The place of the offense.
male captus, bene detentus - "badly captured, well detained," the legal
principle that permits the trial of an improperly seized defendant; in U.S.
practice, articulated by the "Ker-Frisbie doctrine"
mare clausum - closed seas; as opposed to mare liberum (freedom of the
seas)

mare liberum - freedom of the seas; as opposed to mare clausum (closed


seas)
mesne assignment - an "assignment" is a transfer or making over to another
of the whole of any property, real or personal, or of any estate or right therein;
a "mesne assignment" (from the Old English "mesne" for "intermediate,
intervening") is an assignment intervening between an original grant and the
last assignment
See: Upright v. Mercury Business Machines
mutatis mutandis - "when what must be changed has been changed," after
making the necessary changes; with alterations to fit the new circumstances.
For example: "The new provisions governing the tribunal's operations are to
apply as well to the court's operations, mutatis mutandis.
non liquet - the law is insufficient to provide a decision
opinio juris sive necessitatis - (or simply, opinio juris) the perception that a
given behavior is required by law, that it is legally obliged, a duty. (as opposed
to behaviors that are motivated by other concerns, or simply random or
habitual behavior).
Example: the S.S. Lotus case.
pacta sunt servanda - the doctrine that agreements must be observed (that
is: honored, obeyed).
Contrast to rebus sic stantibus.
persona non grata - An unwelcome person -- this is the basis of expulsion in
diplomatic exchanges.
praetor peregrinus - the Roman magistrate who devised the rules of the jus
gentium
prima facie - "at first sight," on the face of it, on first consideration.
Something presumed or inferred to be true, unless proven otherwise. The
standard of evidence applied at U.S. extradition hearings.

quod hoc - on this matter.


ratio scripta - "written reason," the assessment of Roman law commonly held
in the Medieval period
rebus sic stantibus - "matters standing thus," "things staying as they are" the doctrine that treaty obligations hold only as long as the fundamental
conditions and expectations that existed at the time of their creation hold.
Contrast to pacta sunt servanda.
res judicata - "a matter adjudged ", the legal principle common to many
municipal law systems that provides that a matter is settled once a final
judgment has been made. Arguably, a general principle of international law
under Article 38 (1)(c) of the I.C.J. Statute.
sine qua non - "without which not," an indispensable condition, a prerequisite
res publica christiana - the community of Christian nations.
stare decisis - The doctrine that previous court decisions establish binding
precedent for future cases of similar situations; that is, that courts will abide by
previously decided cases. Stare decisis is inapplicable to the I.C.J..
See article 59 of the Statute of the ICJ.
terra nullius - land without an owner ("no man's land"); territory that may be
acquired by a state's occupation of it
ultra vires - "beyond the powers "; in excess of the authority conferred by law,
and hence, invalid, lacking legal effect
uti possidetis - "as you possess", so you may continue to possess
in the post-war context: the concept that a state may retain possession of
territory acquired by force during war
in the post-colonial context: the concept that colonial territorial boundaries
continue in the post-colonial period and that decolonized territories are

not terra nullius (and thus, subject to occupation)


Faso v. Mali
vel non - "or not "

See, for example, Burkina