Merlin Magallona vs Secretary Eduardo Ermita

May 10, 2014
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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.

The Philippine Baselines

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.

 

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