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