Constitutional Law Review: Preliminary Provisions and Basic Concepts

I. Preliminary Provisions and Basic Concepts

1. Define and explain the Archipelagic Doctrine.

i. An Archipelago, which consists of number of islands separated by bodies of water, should be treated as one integral unit, and the waters inside the baselines are considered internal waters. It has two components:
1. Straight baseline method
2. Internal water principle
ii. It is embodied in the second paragraph of Article 1 of the 1987 Constitution which states that: The waters around, between, and connecting the islands of the archipelago, regardless of their breath and dimensions, form part of the internal waters of the Philippines. (Art 1, 1987 Constitution)

2. What is an archipelago?

i. An archipelago is a group of island including parts of islands, interconnecting waters, and other natural features which are so closely interrelated that such islands, waters and other features, form an intrinsic geographical, economic and political entity, or which historically have been regarded as such (Art. 45, UNCLOS).

3. What are the Maritime Zones under the United Nations Convention on the Law of the Seas (UNCLOS)?

i. Internal Waters – consist of waters around, between and connecting the island of the Philippine Archipelago, regardless of their breadth and dimension, including the waters in bays, rivers and lakes. No right of innocent passage for foreign vessels exists in the case of internal waters (Harris, Cases and Materials on International Law, 1998)
ii. Contiguous Zone – the zone contiguous to the territorial sea and extends up to 12c nautical miles from the territorial sea and over which the coastal state may exercise control necessary to prevent the infringement of its customs, fiscal, immigration or sanitary laws and regulations within the territory or territorial sea (Art 33, UNCLOS)
iii. Territorial Sea – extends up to 12 nautical miles outward from the baselines.
iv. Exclusive Economic Zone – the zone extending up to 200 nautical miles from the baselines of a State over which the coastal State has Sovereign rights for the purpose of exploring, exploiting, conserving, and managing its natural resources, whether living or non living, of the waters super adjacent to the seabed and of the seabed and subsoil and with regard to other activities for the economic exploitation and exploration of the zone. (Arts. 56-57, UNCLOS)

4. In 1961, congress passed RA 3046 demarcating the maritime baselines of the Philippines as an Archipelagic State. In 2009, Congress amended RA 3046 by enacting RA 9522. The change was prompted by the need to make RA 3046 compliant with the terms of the United Nations Convention on the Law of the Sea (UNCLOS III). Among others, UNCLOS III prescribes the water-land ratio, length, and contour of baselines of archipelagic States like the Philippines. Complying with these requirements, RA 9522 shortened one baseline, optimized the location of some basepoints around the Philippine archipelago and classified adjacent territories, namely, the Kalayaan Island Group (KIG) and the Scarborough shoal, as regimes of Islands.

i. Several concerned citizens questioned the Constitutionality of RA 9522. They raised the following arguments:

1. RA 9522 dismembers large portion of the national territory because it discards the pre-UNCLOS III demarcation of the Philippine Territory.
2. RA 9522 use of UNCLOS III’s regime if islands framework to draw the baselines weaken our claim over the KIG and Scarborough Shoal.
3. RA 9522 failed to textualize the Philippines claim over Sabah in North Borneo.
4. RA 9522 converts Internal waters into archipelagic waters, hence subjecting these waters to the right of innocent and sea lane passage under UNCLOSIII.

ii. Ruling

1. UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty regulating, among others, sea-use rights over maritime zones (i.e. the territorial waters, contiguous zone, exclusive economic zone), and continental shelves that UNCLOS III delimits. Baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit with precision the extent of their maritime zones and continental shelves. In turn, this gives notice to the rest of the international community of the scope of the maritime space and submarine areas within which States parties exercise treaty-based rights.

2. Had Congress in RA 9522 enclosed the KIG and the Scarborough shoal as part of the Philippine archipelago, adverse legal effects would have ensued. That Philippines would have committed a breach of two provisions of UNCLOS III. Moreover, Sec. 2 of RA 9522 states that Philippines exercised sovereignty and jurisdiction over these Regime of Islands. Far from surrendering the Philippines claim over the KIG and the Scarborough shoal as Regimes of Islands consistent with Art. 121 of UNCLOS III manifests the Philippines state’s responsible observance of its pacta sunt servanda obligation under UNCLOS III.

3. RA 9522 did not repeal Section 2 of RA 5446 (Section 2. 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).

4. Whether referred to as Philippine internal waters under Article I of the Constitution or as archipelagic waters under UNCLOS III (Article 49[1]), the Philippines exercises sovereignty over the body of water lying landward of the baselines, including the air space over it and the submarine areas underneath, the fact of sovereignty, however, does not preclude the operation of municipal and international law norms subjecting the territorial sea or archipelagic waters to necessary, if not marginal, burdens in the interest of maintaining unimpeded, expeditious international navigation, consistent with the international law principle of freedom of navigation. Thus domestically, the political branch of the Philippine government, in the competent discharge of their constitutional powers, may pass legislation designating routes within the archipelagic waters to regulate innocent and sea lanes passage. (Magallona vs Ermita GR No. 187167, July 16, 2011)

5. The government Of The Philippines (GRP) and the Moro Islamic Liberation Front (MILF) were scheduled to sign a Memorandum of Agreement on the Ancestral Domain (MOA-AD). In this MOA-AD, the Bangsamoro Judicial Entity would be established. The BJE is granted the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro. The BJE shall also have jurisdiction over natural resources within its “internal waters”; The BJE shall also have “territorial waters,” which shall stretch beyond the BJE internal waters up to the baselines of the Republic of the Philippines (RP) south east and south west of mainland Mindanao; and within these territorial waters, the BJE and the “Central Government’ shall exercise joint jurisdiction, authority and management over all natural resources. The MOA-AD also states that the BJE is free to enter into any economic cooperation and trade relations with foreign countries and shall have the option to establish trade missions in those countries. Finally, the relationship between the Central Government and the BJE shall associative, characterized by shared authority and responsibility with a structure of governance based on executive, legislative, judicial and administrative institutions with defined powers and functions in the comprehensive compact. Several petitioners for certiorari, Prohibition, and Mandamus were filed assailing the Constitutionality of the MOA-AD. The Solicitor General opposed these petitions arguing that there is no justiciable controversy that is ripe for judicial review as the MOA-AD is yet to be signed by the parties.

    1. Is the contention of the Solicitor General Correct?
      1. That the law or act is question is not yet effective does not negate ripeness. The petitions alleged that the MOA-AD violates the Constitution, thus the petitions make a prima facie case for Certiorari, Prohibition, and Mandamus, and an actual case or controversy ripe for adjudication exists. When an act of a branch of government is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute.
    2. What is the associative concept in International Law?
      1. An associative concept is formed when two states of unequal power voluntarily establish durable links. In the basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state. Free associations represent a middle ground between integration and independence.
    3. Did the MOA-AD vest in the BJE the status of an associated state?
      1. Yes, The provisions in the MOA-AD are consistent with the international legal concept of association; the BJE’s capacity to enter into economic and trade relations with foreign countries, the commitment of the Central Government to ensure the BJE’s participation in meetings and events in the ASEAN and the specialized UN agencies, and the continuing responsibility of the Central Government over external defense. Moreover, the BJE’s right to participate in Philippine official missions bearing on negotiation of border agreements, environmental protection, and sharing og revenues pertaining to the bodies of water adjacent to or between the island form part of the ancestral domain, resembles the right of the government of FSM and the Marshall Islands (which are associated states) to be consulted by the US Government on any foreign affairs matter affecting them. (Province of North Cotabato vs. GRP Peace Panel, GR. No. 18591, October 14, 2008)
    4. Does the present constitution recognize the concept of association?
      1. No provice, city, or municipality, not even the ARMM, is recognized under our laws as having an “associative” relationship with the national government. Indeed, the concept implies powers that go beyond anything ever granted by the Constitution to any local ot regional Government. It also implies the recognition of the associated entity as a state. The constitution, however, does not contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to prepare any part of the Philippines Territory for independence.
    5. Does the MOA-AD violate Sec.22 of Art. II of the 1987 Constitution which provides that: the state recognizes and promotes the rights of indigenous cultural communities within the framework if national unity and development?
      1. An associative arrangement does not uphold national unity. While there may be a semblance of unity because of the associative ties between the BJE and the national government, the act of placing a potion of Philippine Territory in a status which, in international practice, has generally been a preparation for independence, is certainly not conducive to national unity. (Province of North Cotabato vs. GRP Peace Panel, GR. No. 18591, October 14, 2008)
    6. Explain the Doctrine of Constitutional Supremacy.
      1. Under the doctrine of Constitutional Supremacy, if a law or contract violates any norms of the Constitution, that law or contract, whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes, is null and void and without any force and effect. Thus, Since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed written in every stature and contract. (Manila Price Hotel vs. GSIS, GR No. 122156, February 3, 1997)

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