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I.
Regalian Doctrine
Under the concept of Jura Regalia, the State has the capacity to own
The
1 Cruz v Sec. of Environment and Natural Resources, G.R. No. 135385. Dec 6, 2000, Justice Puno,
Separate Opinion.
2 Id.
3 Id.
Simply stated, all lands of the public domain as well as all natural
resources enumerated therein, whether on public or private land, belong
to the State.5 The provision reads that the exploration, development and
utilization of all forces of potential energy, which are considered natural
resources shall be under the full control and supervision of the State. To
conserve
the
Philippines
natural
resources
and
to
prevent
its
exploitation, the State has effectively restricted the use of these natural
resources by imposing a limit to the allowed foreign equity. In the case of
Republic v. Judge Villanueva and Iglesia ni Kristo, Justice Teehankee
opined that the Constitutions
provision stating
that
no
private
states that it is the policy of the State to accelerate the exploration and
development of renewable energy resources. 9 Moreover, the State aims
to achieve energy self-reliance, through the adoption of sustainable
energy development strategies to reduce the country's dependence on
fossil fuels.10 Furthermore, as part of the acts declaration of policies, the
State
aims
to
increase
the
utilization
of
renewable
energy
by
and
to
establish
the
necessary
infrastructure
and
This means, solar and wind energy are basically infinite resources of
energy. Solar Energy refers to the energy derived from solar radiation
that can be converted into useful thermal or electrical energy. 14 Whereas,
Solar Energy Systems refer to energy systems which convert solar energy
9 RENEWABLE ENERGY ACT OF 2008 2
10 Id.
11 Id.
12 Id.
13 RENEWABLE ENERGY ACT OF 2008 4
14 Id.
15
refers to the energy that can be derived from wind that is converted into
useful electrical or mechanical energy. 16 And Wind Energy Systems refer
to the machines or other related equipment that convert wind energy into
useful electrical or mechanical energy. 17
The electricity converted by Solar Energy Systems and Wind Energy
Systems which are to be transmitted and distributed to end users are
governed by the Electric Power Industry Reform Act of 2001 or EPIRA.
However, the generation of electricity is from solar or wind energy
systems are not regulated by the EPIRA. The government should review
the question of whether the generation of electricity through the use of
Solar and Wind Energy Systems should be limited by the Constitutions
equity requirement. If the purpose of the Constitution is to prevent the
exploitation of our natural resources, should this restriction include
renewable energy resources?
III.
Outer Space Treaty.18 Under Article II of the treaty it states that Outer
space, including the moon and other celestial bodies, is not subject to
national appropriation by claim of sovereignty, by means of use or
occupation, or by any other means. Of course it is safe to infer that outer
15 Id.
16 Id.
17 Id.
18 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space,
Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, T.I.A.S. No. 6347, 610
U.N.T.S. 205 [hereinafter Outer Space Treaty].
However, our government should also ask the question: does the
prohibition under Article II of the treaty extend to the appropriation of
cosmic rays, gases or the sun's energy, or to the collecting of mineral
samples or precious metals on the moon or other celestial bodies? 19 If and
when our country develops the technology to harness energy from the sun
in outer space, the answer to the question will be vital rather than trivial.
IV.
Summary
The concept of the regalian doctrine extends not only to the States
right to the ownership of lands but also to other natural resources such as
solar energy and wind energy. The constitution mandates that the
exploration, development, utilization be bound by the 60-40 equity
requirement.
Thus,
effectively
limiting
foreign
participation
and
investment in the solar and wind energy industry to on 40%. The authors
of this paper would like to challenge such ownership equity limitations on
the ground that although the State has the right to limit the right to enjoy
these natural resources based on the regalia doctrine, practicality
dictates that in order to develop such industries it would be wiser to lift
the limits. Instead of imposing the equity restrictions, the State should
promote foreign investments on those industries to help renewable
energy industries to prosper and progress faster. Solar and wind energy
19 Stephen Gorove, Interpreting Article II of the Outer Space Treaty, 37 Fordham L. Rev. 349 (1969).
Available at: http://ir.lawnet.fordham.edu/flr/vol37/iss3/2