Magalona Vs Ermita
Magalona Vs Ermita
Magalona Vs Ermita
ERMITA
DECISION
CARPIO, J.:
The Case
This original action for the writs of certiorari and prohibition assails the constitutionality
of Republic Act No. 95221 (RA 9522) adjusting the countrys archipelagic baselines
and classifying the baseline regime of nearby territories.
The Antecedents
In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the
maritime baselines of the Philippines as an archipelagic State.3 This law followed the
framing of the Convention on the Territorial Sea and the Contiguous Zone in 1958
(UNCLOS I),4 codifying, among others, the sovereign right of States parties over their
territorial sea, the breadth of which, however, was left undetermined. Attempts to fill
this void during the second round of negotiations in Geneva in 1960 (UNCLOS II)
proved futile. Thus, domestically, RA 3046 remained unchanged for nearly five
decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA 5446])
correcting typographical errors and reserving the drawing of baselines around Sabah
in North Borneo.
In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now
under scrutiny. 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),5 which the Philippines ratified on 27 February 1984.6 Among others, UNCLOS III
prescribes the water-land ratio, length, and contour of baselines of archipelagic States
like the Philippines7 and sets the deadline for the filing of application for the extended
continental shelf.8 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 whose islands generate their own
applicable maritime zones.
The Issues
1. Preliminarily
2. Whether the writs of certiorari and prohibition are the proper remedies to
assail the constitutionality of RA 9522.
On the threshold issues, we hold that (1) petitioners possess locus standi to bring this
suit as citizens and (2) the writs of certiorari and prohibition are proper remedies to
test the constitutionality of RA 9522. On the merits, we find no basis to declare RA
9522 unconstitutional.
On the Threshold Issues
Standi as Citizens
In praying for the dismissal of the petition on preliminary grounds, respondents seek a
strict observance of the offices of the writs of certiorari and prohibition, noting that the
writs cannot issue absent any showing of grave abuse of discretion in the exercise of
judicial, quasi-judicial or ministerial powers on the part of respondents and resulting
prejudice on the part of petitioners.18
Respondents submission holds true in ordinary civil proceedings. When this Court
exercises its constitutional power of judicial review, however, we have, by tradition,
viewed the writs of certiorari and prohibition as proper remedial vehicles to test the
constitutionality of statutes,19 and indeed, of acts of other branches of
government.20 Issues of constitutional import are sometimes crafted out of statutes
which, while having no bearing on the personal interests of the petitioners, carry such
relevance in the life of this nation that the Court inevitably finds itself constrained to
take cognizance of the case and pass upon the issues raised, non-compliance with
the letter of procedural rules notwithstanding. The statute sought to be reviewed here
is one such law.
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 [12 nautical miles from the baselines], contiguous zone [24
nautical miles from the baselines], exclusive economic zone [200 nautical miles from
the baselines]), and continental shelves that UNCLOS III delimits.23UNCLOS III was
the culmination of decades-long negotiations among United Nations members to
codify norms regulating the conduct of States in the worlds oceans and submarine
areas, recognizing coastal and archipelagic States graduated authority over a limited
span of waters and submarine lands along their coasts.
On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS
III States parties to mark-out specific basepoints along their coasts from which
baselines are drawn, either straight or contoured, to serve as geographic starting
points to measure the breadth of the maritime zones and continental shelf. Article 48
of UNCLOS III on archipelagic States like ours could not be any clearer:
Article 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.
(Emphasis supplied)
Thus, 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, namely, the exercise of sovereignty over territorial
waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration, and
sanitation laws in the contiguous zone (Article 33), and the right to exploit the living
and non-living resources in the exclusive economic zone (Article 56) and continental
shelf (Article 77).
Even under petitioners theory that the Philippine territory embraces the islands
and all the waters within the rectangular area delimited in the Treaty of Paris, the
baselines of the Philippines would still have to be drawn in accordance with RA 9522
because this is the only way to draw the baselines in conformity with UNCLOS III. The
baselines cannot be drawn from the boundaries or other portions of the rectangular
area delineated in the Treaty of Paris, but from the outermost islands and drying reefs
of the archipelago.24
UNCLOS III and its ancillary baselines laws play no role in the acquisition,
enlargement or, as petitioners claim, diminution of territory. Under traditional
international law typology, States acquire (or conversely, lose) territory through
occupation, accretion, cession and prescription,25 not by executing multilateral
treaties on the regulations of sea-use rights or enacting statutes to comply with the
treatys terms to delimit maritime zones and continental shelves. Territorial claims to
land features are outside UNCLOS III, and are instead governed by the rules on
general international law.26
Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands
framework to draw the baselines, and to measure the breadth of the applicable
maritime zones of the KIG, weakens our territorial claim over that area.27 Petitioners
add that the KIGs (and Scarborough Shoals) exclusion from the Philippine
archipelagic baselines results in the loss of about 15,000 square nautical miles of
territorial waters, prejudicing the livelihood of subsistence fishermen.28 A comparison
of the configuration of the baselines drawn under RA 3046 and RA 9522 and the
extent of maritime space encompassed by each law, coupled with a reading of the
text of RA 9522 and its congressional deliberations, vis--vis the Philippines
obligations under UNCLOS III, belie this view.
The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA
9522 merely followed the basepoints mapped by RA 3046, save for at least nine
basepoints that RA 9522 skipped to optimize the location of basepoints and adjust the
length of one baseline (and thus comply with UNCLOS IIIs limitation on the maximum
length of baselines). Under RA 3046, as under RA 9522, the KIG and the
Scarborough Shoal lie outside of the baselines drawn around the Philippine
archipelago. This undeniable cartographic fact takes the wind out of petitioners
argument branding RA 9522 as a statutory renunciation of the Philippines claim over
the KIG, assuming that baselines are relevant for this purpose.
Petitioners assertion of loss of about 15,000 square nautical miles of territorial waters
under RA 9522 is similarly unfounded both in fact and law. On the contrary, RA 9522,
by optimizing the location of basepoints, increased the Philippines total maritime
space (covering its internal waters, territorial sea and exclusive economic zone) by
145,216 square nautical miles, as shown in the table below:29
Internal or
archipelagic
waters 166,858 171,435
Exclusive
Economic
Zone 382,669
Further, petitioners argument that the KIG now lies outside Philippine territory
because the baselines that RA 9522 draws do not enclose the KIG is negated by RA
9522 itself. Section 2 of the law commits to text the Philippines continued claim of
sovereignty and jurisdiction over the KIG and the Scarborough Shoal:
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as
part of the Philippine archipelago, adverse legal effects would have ensued. The
Philippines would have committed a breach of two provisions of UNCLOS III. First,
Article 47 (3) of UNCLOS III requires that [t]he drawing of such baselines shall not
depart to any appreciable extent from the general configuration of the archipelago.
Second, Article 47 (2) of UNCLOS III requires that the length of the baselines shall not
exceed 100 nautical miles, save for three per cent (3%) of the total number of
baselines which can reach up to 125 nautical miles.31
Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS
IIIs limits. The need to shorten this baseline, and in addition, to optimize the location
of basepoints using current maps, became imperative as discussed by respondents:
1. The length of the baseline across Moro Gulf (from Middle of 3 Rock
Awash to Tongquil Point) is 140.06 nautical miles x x x. This exceeds
the maximum length allowed under Article 47(2) of the [UNCLOS III],
which states that 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.
2. The selection of basepoints is not optimal. At least 9 basepoints can
be skipped or deleted from the baselines system. This will enclose an
additional 2,195 nautical miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968, and
not established by geodetic survey methods. Accordingly, some of the
points, particularly along the west coasts of Luzon down to Palawan
were later found to be located either inland or on water, not on
low-water line and drying reefs as prescribed by Article 47.35
Hence, far from surrendering the Philippines claim over the KIG and the
Scarborough Shoal, Congress decision to classify the KIG and the
Scarborough Shoal as Regime[s] of Islands under the Republic of the
Philippines consistent with Article 12136 of UNCLOS III manifests the
Philippine States responsible observance of its pacta sunt servanda obligation
under UNCLOS III. Under Article 121 of UNCLOS III, any naturally formed
area of land, surrounded by water, which is above water at high tide, such as
portions of the KIG, qualifies under the category of regime of islands, whose
islands generate their own applicable maritime zones.37
RA 5446 Retained
Petitioners argument for the invalidity of RA 9522 for its failure to textualize the
Philippines claim over Sabah in North Borneo is also untenable. Section 2 of RA 5446,
which RA 9522 did not repeal, keeps open the door for drawing the baselines of
Sabah:
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. (Emphasis supplied)
As their final argument against the validity of RA 9522, petitioners contend that the
law unconstitutionally converts internal waters into archipelagic waters, hence
subjecting these waters to the right of innocent and sea lanes passage under
UNCLOS III, including overflight. Petitioners extrapolate that these passage rights
indubitably expose Philippine internal waters to nuclear and maritime pollution
hazards, in violation of the Constitution.38
Article 49. Legal status of archipelagic waters, of the air space over archipelagic
waters and of their bed and subsoil.
1. The sovereignty of an archipelagic State extends to
the waters enclosed by the archipelagic
baselines drawn in accordance with article 47,
described as archipelagic waters, regardless of their
depth or distance from the coast.
2. This sovereignty extends to the air space over the
archipelagic waters, as well as to their bed and
subsoil, and the resources contained therein.
xxxx
The fact that for archipelagic States, their archipelagic waters are subject to
both the right of innocent passage and sea lanes passage45 does not place them in
lesser footing vis--vis continental coastal States which are subject, in their territorial
sea, to the right of innocent passage and the right of transit passage through
international straits. The imposition of these passage rights through archipelagic
waters under UNCLOS III was a concession by archipelagic States, in exchange for
their right to claim all the waters landward of their baselines, regardless of their depth
or distance from the coast, as archipelagic waters subject to their territorial
sovereignty. More importantly, the recognition of archipelagic States archipelago and
the waters enclosed by their baselines as one cohesive entity prevents the treatment
of their islands as separate islands under UNCLOS III.46 Separate islands generate
their own maritime zones, placing the waters between islands separated by more than
24 nautical miles beyond the States territorial sovereignty, subjecting these waters to
the rights of other States under UNCLOS III.47
In fact, the demarcation of the baselines enables the Philippines to delimit its
exclusive economic zone, reserving solely to the Philippines the exploitation of all
living and non-living resources within such zone. Such a maritime delineation binds
the international community since the delineation is in strict observance of UNCLOS
III. If the maritime delineation is contrary to UNCLOS III, the international community
will of course reject it and will refuse to be bound by it.
UNCLOS III favors States with a long coastline like the Philippines. UNCLOS
III creates a sui generis maritime space the exclusive economic zone in waters
previously part of the high seas. UNCLOS III grants new rights to coastal States to
exclusively exploit the resources found within this zone up to 200 nautical
miles.53 UNCLOS III, however, preserves the traditional freedom of navigation of other
States that attached to this zone beyond the territorial sea before UNCLOS III.
RA 9522 and the Philippines Maritime Zones
Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress
was not bound to pass RA 9522.54 We have looked at the relevant provision of
UNCLOS III55 and we find petitioners reading plausible. Nevertheless, the prerogative
of choosing this option belongs to Congress, not to this Court. Moreover, the luxury of
choosing this option comes at a very steep price. Absent an UNCLOS III compliant
baselines law, an archipelagic State like the Philippines will find itself devoid of
internationally acceptable baselines from where the breadth of its maritime zones and
continental shelf is measured. This is recipe for a two-fronted disaster: first, it sends
an open invitation to the seafaring powers to freely enter and exploit the resources in
the waters and submarine areas around our archipelago; and second, it weakens the
countrys case in any international dispute over Philippine maritime space. These are
consequences Congress wisely avoided.
The enactment of UNCLOS III compliant baselines law for the Philippine archipelago
and adjacent areas, as embodied in RA 9522, allows an internationally-recognized
delimitation of the breadth of the Philippines maritime zones and continental shelf. RA
9522 is therefore a most vital step on the part of the Philippines in safeguarding its
maritime zones, consistent with the Constitution and our national interest.