CONSTITUTIONAL LAW | The Philippines As a State

Rewritten Notes

REWRITTEN NOTES SIDE NOTES

I. Definition of a State: Elements of a State
Definition of a State. A community of persons, more or less numerous, permanently
occupying a definite portion of territory, independent of external control, and possessing a
government to which a great body of inhabitants render habitual obedience.

Elements of a State:

(1) People.
(2) Territory
(3) Government
(4) Sovereignty
A. Article 1, Montevideo Convention
The state as a person of international law should possess the following qualifications:

(1) a permanent population

- As requisite for Statehood: Adequate number for self-sufficiency and defense; of
both sexes for perpetuity.
(2) a defined territory;
- The national territory comprises the Philippine archipelago (Art. 2 RPC)
(3) government; and So, if the state is composed of
- The agency or instrumentality through which the will of the State is formulated, only one gender, it CANNOT be
expressed and realized considered a state
(4) Capacity to enter into relations with the other states.
B. Case Laws

Province of North Cotabato v. Government of the Republic of the Ph

Facts

 Memorandum of Agreement – Ancestral Domains (MOA-AD)

 Creates the Bangsamoro Juridical Entity (BJE)
 To be entered by the Government of the Republic of the Philippines (GRP) and
the Moro Islamic Liberation Front (MILF) as part of the peace process in
Mindanao
 Petition for Prohibition – to prohibit the GRP from entering into the MOA-AD
for being unconstitutional.

Petitioner’s Argument

 The constitution does NOT contemplate ANYOTHER state in its jurisdiction

other than the Philippine State

Respondent’s Argument

 BJE is NOT a state; it is only an “expanded version” of the ARMM which is

allowed under the constitution.

Decision

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 BJE IS an associated state, thus the MOA-AD is UNCONSTITUTIONAL

- Association is a “transitional device towards independence”
 Proof:
- BJE’s capacity to enter into economic and trade relations
- BJE’s participation in meetings and events in the ASEAN & UN
- Responsibility of Central Government over external defense
- BJE’s right to participate in the Philippine official missions

II. The Philippine Territory

A. Article 1, 1987 Constitution
Art. 1. The National Territory

The national territory comprises:

(1) the Philippine archipelago, with all the islands and waters embraced therein,
and
(2) all other territories over which the Philippines has sovereignty or jurisdiction,
(3) consisting of its terrestrial, fluvial and aerial domains, including its territorial
sea, the seabed, the subsoil, the insular shelves, and other submarine areas.
(4) 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
B. The Philippine Archipelago
(1) the Philippine archipelago, with all the islands and waters embraced therein
 Archipelago
- A cluster of islands forming a territorial unit
- Or a unit of water studded with islands
 Article 46, UNCLOS:
- Modern Definition of an Archipelago
- "Archipelagic State" means a State constituted wholly by one or more archipelagos
and may include other islands
- "Archipelago" means a group of islands, including parts of islands, interconnecting
waters and other natural features which are so closely interrelated that such islands,
waters and other natural features form an intrinsic geographical, economic and
political entity, or which historically have been regarded as such
 The Philippine Archipelago: At Present
- 1987 Constitution is the SAME as the 1973 Constitution
 The Philippine Archipelago: According to the 1935Constitution

Article 1, 1935 Constitution

Four points of reference for the determination of Philippine territory:

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(1) States by the Treaty of Paris concluded between the United States and Spain on the
10th day of December 1898, the limits of which are set forth in Article III of said treaty,
(2) together with all the islands in the treaty concluded at Washington, between the
United States and Spain on the 7th day of November 1900, and
(3) in the treaty concluded between the United States and Great Britain on the 2nd day of
January, 1930,
(4) and all territory over which the present Government of the Philippine Islands
exercises jurisdiction.

Article 3, Treaty of Paris (10 December 1898)

 “The archipelago known as the Philippine Islands, and comprehending the islands lying
within"
 Left some doubt about the inclusion within the ceded territory of the Batanes Islands
(north), and of the Islands of Sibutu and Cagayan de Sulu (south), and the Turtle and
Mangsee Islands.

Treaty of Washington (07 November 1900)

 Corrected the error with respect to the Islands of Sibutu and Cagayan de Sulu.

Treaty between US and Great Britain (02 January 1930)

Jurisdiction over the Turtle and Mangsee Islands was clarified by the convention.

C. Internal/Archipelagic Waters, Archipelagic Doctrine

(4) 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
 Purpose:
- Even if the Ph is an archipelago, it needs to be treated as a single unit.
- The danger of the Philippines NOT being a single unit is that there will be several high
seas (other countries can just come in) because e won’t have jurisdiction/sovereignty
over it

Right of Innocent Passage, Article 52, UNCLOS III

The archipelagic State may, without discrimination in form or in fact among foreign ships,
suspend temporarily in specified areas of its archipelagic waters the innocent passage of
foreign ships if such suspension is essential for the protection of its security. Such
suspension shall take effect only after having been duly published.

Right of Archipelagic Sea Lanes Passage, Article 53, UNCLOS III

An archipelagic State may designate sea lanes and air routes there above, suitable for the
continuous and expeditious passage of foreign ships and aircraft through or over its
archipelagic waters and the adjacent territorial sea

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(4) and all territory over which

the present Government of
Archipelagic sea lanes passage means the exercise in accordance with this Convention of
the Philippine Islands
the rights of navigation and overflight in the normal mode solely for the purpose of
exercises jurisdiction.
continuous, expeditious and unobstructed transit between one part of the high seas or an
 This clause was added to
exclusive economic zone and another part of the high seas or an exclusive economic zone. clarify the doubt with respect
D. Other Territories to the Batanes Islands.
(2) all other territories over which the Philippines has sovereignty or jurisdiction,

Section 2, R.A. 5446

 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.

P.D. 1596

 The Kalayaan Island Group do not legally belong to any state or nation but, by reason of
history, indispensable need, and effective occupation and control established in
accordance with international law, such areas must now be deemed to belong and
subject to the sovereignty of the Philippines.

Section 2, R.A. 9522

 The baseline in the following areas over which the Philippines likewise exercises
sovereignty and jurisdiction shall be determined as "Regime of Islands" under the
Republic of the Philippines consistent with Article 121 of the United Nations Convention
on the Law of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596;
b) Bajo de Masinloc, also known as Scarborough Shoal.

Batanes – Article 1, 1935 Constitution

“over which the present GPI exercises jurisdiction”

Treaty of Paris left some doubt over the inclusion of the Batanes Islands, hence the 1935
constitution added the clause “all territory over which the present (1935) government of the
Philippine Islands exercises jurisdiction

Article 1, 1973 Constitution

“by historical right or legal title”

DOMINIUM: Batanes belonged to the Philippines because in all its history Batanes had
always been a part of the Philippines’ applies as well to the Marianas islands and freedom
land

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Article 1, 1987 Constitution

“has sovereignty or jurisdiction”

EMPERIUM: meaning acts of sovereignty, meaning exercise of governmental

powers. So if we claim a property under the principle of emporium, it belongs to
the state in its sovereign capacity.

E. Components of Territory
(3) consisting of its terrestrial, fluvial and aerial domains, including its territorial
sea, the seabed, the subsoil, the insular shelves, and other submarine areas.

Comment of Commissioner Adolfo Azcuna of the 1986 Con. Com.

 The terrestrial domain includes all surfaces of land above the sea that belong to the
Philippines. These are the ones included within the base lines of the archipelago.
 The fluvial domain includes the inland waters: bays and rivers, streams, as well as
internal waters or the waters of the sea, landwards from the baselines
 The aerial domain of the Philippines includes the air directly above its terrestrial and
fluvial domains. All the air that lies above our land territory and our water territory
belongs to us, all the way up to outer space where there is no more air. ... The aerial
domain extends up to where outer space begins, directly over our land and water
territories
 Then we specify that our national territory includes the territorial sea, the seabed, the
subsoil — again we rearranged the sequence here, the territorial sea comes first — this
is the margin or belt of maritime waters adjacent to our base lines up to the extent of 12
nautical miles. It is a belt surrounding our base lines seaward. Whether we like it or not,
international law imposes a territorial sea in every country that has waters.
 Under the territorial sea is the seabed, which also belongs to us.
 And then the insular shelves or the continental shelf,
 meaning the submarine area that is directly under the water beyond the territorial sea, up
to the edge of the continental margin, regardless of the depth of the superjacent waters.
 Under international law, the continental shelf; namely, the seabed and subsoil of the
submarine area, belongs to us. This includes not only the continental shelf of individual
islands but [also] the archipelagic shelves and the other submarine areas over which the
Philippines has sovereignty or jurisdiction — this is true in the old provision. This was
intended to cover any other areas that also belong to us, such as the continental slope or
the continental margin, over which we have jurisdiction or sovereignty...

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F. Baseline and Maritime Zones

Normal Baseline (Article 5, UNCLOS III) v. Straight Baseline (Article 7,

UNCLOS III)
Normal Baseline Straight Baseline

Art. 5, UNCLOS III Art. 7, UNCLOS III

Drawn following “the low-water line Archipelagic States, however, instead,

along the coast as marked on large-scale
charts officially recognized by the coastal
State."
This line follows the sinuosities of the
coast and therefore would normally not
consist of straight lines.
have drawn "straight baselines."
Instead of following the sinuosities of the
coast, straight lines are drawn connecting
selected points on the coast without
appreciable departure from the general
shape of the coast.

Anglo-Norwegian Fisheries, U.K. v. Norway, Order

There is no fixed norm for determining the "low water mark" but the Anglo-Norwegian
Fisheries Case suggested that "for the purpose of measuring the breadth of the territorial
sea, it is the low-water mark as opposed to the high-water mark, or the mean between the
two tides, which has generally been adopted in the practice of States.

This method of drawing lines was first upheld in the Anglo-Norwegian Fisheries Case. The
case upheld the validity of the straight baseline unilaterally adopted by Norway.

R.A. 3046

 Drew “straight baseline” around the Philippines

 FIRST baseline law

R.A. 5446

 Drew “straight baseline” around the Philippines

 Amends RA 3046, corrects typographical errors, adds claims on Sabah
 SECOND baseline law

Article 47, UNCLOS III

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How to Draw Baselines:

 An archipelagic State may draw straight archipelagic baselines

(1) joining the outermost points of the outermost islands and drying reefs of the
archipelago provided that within such baselines are included the main islands and
an area in which the ratio of the area of the water to the area of the land, including
atolls, is between 1 to 1 and 9 to 1.
(2) The length of such baselines shall not exceed 100 nautical miles, except that up to 3
per cent of the total number of baselines enclosing any archipelago may exceed that
length, up to a maximum length of 125 nautical miles.
(3) The drawing of such baselines shall not depart to any appreciable extent from the
general configuration of the archipelago.

R.A. 9522

 Drew “straight baseline” around the Philippines based on Article 47, UNCLOS III
 THIRD baseline law: PRESENT BASELINE LAW

Magallona, et al vs Ermita, et al.

Petitioner’s Arguements Decisions

 R.A. 9522 is unconstitutional because  UNCLOS III has nothing to do with

it reduces Philippine maritime territory the acquisition or loss of territory, it is
and therefore violates Art.1 of the 1987 a treaty regulating sea-use rights over
Philippine Constitution maritime zones.

 R.A. 9522 treatment of the Kalayaan  Pacta Sunt Servanda – “compliance

Island Group as a “regime of islands” with an international obligation in
results in a loss of large maritime area good faith.”
which prejudices the livelihood of
fishermen
Territorial Sea, Articles 2 and 3, UNCLOS III
(1) The sovereignty of a coastal State extends, beyond its land territory and internal
waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent
belt of sea, described as the territorial sea.
(2) This sovereignty extends to the air space over the territorial sea as well as to its bed
and subsoil.

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(3) The sovereignty over the territorial sea is exercised subject to this Convention and to
other rules of international law.

Right of Innocent Passage over Territorial Sea, Arts. 17 & 19, UNCLOS III
Art. 17. Right of innocent passage

Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the
right of innocent passage through the territorial sea.

Art. 19. Meaning of innocent passage

1. Passage is innocent so long as it is not prejudicial to the peace, good order or security
of the coastal State. Such passage shall take place in conformity with this Convention
and with other rules of international law.
 Art.17 & 19, UNCLOS III – Archipelagic Waters
 1987 Philippine Constitution – Internal Waters
 They are the SAME

Contiguous Zone, Articles 33 and 48, UNCLOS III

Art. 33. Contiguous zone low-water line = low tide line

1. In a zone contiguous to its territorial sea, described as the contiguous zone, the
coastal State may exercise the control necessary to:
appreciable departure means
(a) prevent infringement of its customs, fiscal, immigration or sanitary laws and NOT MORE THAN 125 nm
regulations within its territory or territorial sea;
(b) punish infringement of the above laws and regulations committed within its
territory or territorial sea.
2. The contiguous zone may not extend beyond 24 nautical miles from the baselines
from which the breadth of the territorial sea is measured.

Art. 48. Measurement of the breadth of the territorial sea, the contiguous zone, the
exclusive economic zone and the continental shelf

The breadth of the territorial sea, the contiguous zone, the exclusive economic zone and
the continental shelf shall be measured from archipelagic baselines drawn in accordance
with article 47.

Exclusive Economic Zone, Article6 56-58, UNCLOS III

Art. 56. Rights, jurisdiction and duties of the coastal State in the exclusive economic zone

Art. 57. Breadth of the exclusive economic zone

The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines
from which the breadth of the territorial sea is measured.

Art. 58. Rights and duties of other States in the exclusive economic zone

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Significance of Maritime Zones:

 They determine jurisdiction

and sovereignty
 So by reducing it, you increase
the high seas, where NO state
has ownership

Pacta Sunt Servanda

 When the country enters into a

treaty, without stipulating
reservations, it exercises its
right to waive sovereignty

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Only Sovereign Rights:

 NOT Sovereignty
 SHARING with neighboring
countries
 But we have a SAY in how
other countries use it

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