PLJ Volume 49 Number 4 - 05 - Ma. Reymunda Carmen R. Balasbas - The National Territory of The Philippines - A Brief Study
PLJ Volume 49 Number 4 - 05 - Ma. Reymunda Carmen R. Balasbas - The National Territory of The Philippines - A Brief Study
PLJ Volume 49 Number 4 - 05 - Ma. Reymunda Carmen R. Balasbas - The National Territory of The Philippines - A Brief Study
OF THE PHILIPPINES:
A BRIEF STUDY
MA.
505
506
[VOL . 49
tection of fishing and mineral rights, including the tapping of undersea oil
in offshore waters which, by historic right, legally belong to the Philippines.
Not so long ago, President Ferdinand E. Marcos gave utterance to
the confident posture of the government and the Filipino people to defend
their own territory despite the supply of sophisticated weapons and ex
pertise to the rebels from outside sources, without having to invoke the
U.S.-Philippine Treaty of Alliance or Mutual Defense Pact, and without
having to summon the aid of other nations in East Asia with which the
Philippines has regional arrangements for collective self-defense.1
W hat are the Instruments Officially Defining Philippine National Territory?
The quantum of space on this planet which, as land, sea, and superjacent atmosphere, may be internationally recognized as constituting Philippine national territory is defined in several historical documents. The
first of these is the Treaty of Paris, concluded between the United States
and Spain on December 10, 1898 whereby the Philippines was ceded for
1 See in particular chapters V, VI and VII of the U. N . Charter. Dr. Leland
M. Goodrich, Director of the World Peace Foundation and Dr. Edward Hambro,
member of the technical staff of the Norwegian delegation to the United Nations
Conference on International Organization at San Francisco, make the following
comments:
"At the San Francisco Confer.::nce these demands for greater recognition of regional and limited arrangements and agencies received
full consideration. While the general principle of subordination of
regional arrangements and agencies to the purposes Rnd principles of
the Charter is retained in the final test, certain amendments were
introduced which considerably strengthened the position of such
regional arrangements and agencies. Under the provisions of Article
52 of the Charter, Members of the United Nations which enter into
such arrangements or constitute such agencies, 'shall make every effort to such regional arrangements or by such regional agencies be
fore referring them to the Security Council' (Charter of the United
Nations, Article 52, paragraph 2)."
" The possibility of using regional arrangements and agencies as the basis
for common action against acts of aggression without the requirement of Security Council authorization was attained by the insertion in Chapter VII of a new
Article safeguarding the 'inherent right of individual or collective self-defense . .. '"
GOODRICH
37-38 (1946).
The victorious Allies believed in regional arrangements for mutual cooperation:
"Nothing in this Chapter should preclude the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance
of international peace and security as are appropriate for regional action, provided such arrangements or agencies and their activities are consistent with
the purposes and principles of the Organization. The Security Council should
encourage settlement of local disputes through such regional arrani!ements or
by such r egional agencies, either on the initiative of the states concerned or by
reference from the Security Council." (Dumbarton Oaks Proposals, Chapter VIII,
Section 1, Washington, October I, 1944).
1974]
507
508
[VOL.
49
"Section 16. Territorial. jurisdiction and extent of powers of Philippine Government. - The territory over which the Government of the
Philippine Islands exercises jurisdiction consists of the entire Philippine Archipelago and is comprised in the limits defined by the treaties
between the United States and Spain, respectively signed in the City
of Paris on the tenth day of December, eighteen hundred and ninetyeight, and in the City of Washington on the seventh day of November,
one thousand nine hundred."
The sixth instrument is section 1 of the 1935 Constitution, a simplification of the. technical description of Philippine boundaries in section
1 of the Report of the Committee on Territorial Delimitation, of the
Constitutional Convention.
The seventh instrument is the 1973 Constitution, Article I of which is
clearly an improvement over the corresponding section of the 1935 Constitution. It reads as follows:
"Section 1. The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all the
other territories belonging to the Philippines by historic or legal
title, including the territorial sea, the air space, the subsoil, the sea
bed, the insular shelves, and the other submarine areas over which
the Philippines has sovereignty or jurisdiction. The waters around,
between, and connecting the islands of the archipelago, irrespective of
their breadth and dimensions, form part of the internal watels of
the Philippines."
ed., 1934).
1974]
509
Obviously, the historical and political considerations affecting our national boundaries have to dovetail with the overriding geographical factors.
This introduces us to a brief treatment of the various parts of the national
territory.
0/
A contemporary source is a Textbook on the New Philippine Constitution by Professors Hector S. de Leon and Emilio E. Lugue, Jr. 6 They
have painstakingly identified these parts, thus:
"The phrase 'all the other territories belonging to the Philippines
by historic right or legal title' is intended to cover pending Philippine claim to Sabah (formerly North Borneo) against Malaysia, and
the possible claim to the so-called Freedomland (a group of islands
known as 'Spratly' islands which are also being claimed by other
nations notably the Republic of China and South Vietnam), and the
Marianas Islands, including Guam (which according to historical documents were under the control of the civil and ecclesiastical authorities
in the Philippines during the Spanish Regime), or any other territory
over which the Philippines may in the future find it has a right to
claim.
"Other areas included in Phiiippine archipelago. They ale:
"(1) The territorial sea. - It is that part af the sea extending
three nautical miles from the low-water mark. It is also called the
'marginal sea', the 'marginal belt', the 'marine belt', or a certain
limit as '3-mile limit'. This three-mile rule is now considered obsolete.
The International Law Commission of the United Nations
which has been undertaking a comprehensive study of the Law of the
Sea, particularly the subject of the breadth of the territorial sea of
a coastal state, has recommended that it should not be more than
twelve miles;
Abad Santos, The Archipelagic Concept - I , 2 J . INTEG. BAR PHIL., 136 (1974).
34-38, (1973 Ed.).
510
[VOL. 49
"(2) The air space. - This refers to that part of the air above
the land and water territory of -the Philippines. The p :'c<,ent state
of development in space navigation does not permit any delimitation
of the height of air space subject to the sovereign jurisdiction of a
state;
"(3) The sub-soil. - This refers to the soil below the surface
soil, including mineral and natural resources;
"( 4) The sea-bed (or sea floor or sea bottom). - This refers to
the land that holds the sea; including mineral and natural resources;
"(5) Insular shelves (or continental shelves). - They are the submerged portions of a continent or offshore island, 'which slope gently
seaward from the low waterline to a point where a substantial break
in grade occurs, at which point the bottom slopes seaward at a considerable increase in slope until the great ocean depths are reached;
and
"(6) Other submarine areas. - Among oceanographic terms used
are seamount, trough, trench, basin, deep, bank, shoal, and reef.
"Three-fold division of navigable waters . From the standpoint of
International Law, the waters of the earth are divided into:
"(1) Inland or internal waters. - They are the parts of the sea
within the land territory. They are consi.dered in the same light as
rivers and lakes within the land territoi-j of a state;
"(2) Territorial sea (supra.). - It is a belt of water outside and
parallel to the coastline or to the outer limits of the inland or internal
waters; and
"(3) High or open seas. - They ~re waters that lie seaward of
the territorial sea.
"The inland or internal waters and the territorial sea together
comprise what is generally known as the territorial waters of a state.
Over these waters, a state exercises sovereignty to the same extent
as its land territory but foreign vessels have the right of innocent
passage through the territorial sea. On the other hand, the open
seas are international waters which means that they are not subject
to the sovereignty of any state but every state has equal rights of
use in them."
Hershey,' classifies the extent of a state's tern tory into (1) the Land
Domain; (2) the Maritime and Fluvial Domain, or territorial waters, using
the latter phrase in a general sense; and (3) Aerial Space. To avoid the
ambiguity of the word "territory", Professtlr Foulke suggests the use of
"maritime belt" when referring to marginal waters, and the word "territory" when referring to the surface over which the jurisdiction of the
state . extends, whether land or waters, and "territorial waters." when
referring to inland waters. s
7 INTERNATIONAL LAW
173 (1912) . Ct. 1 , FOULKE, A TREATISE ON INTERNATIONAL
LAw 286 (1920).
8 See also 1 OPPENHEI;>,I, INTERNATIONAL LAW 235 (2d ed., 1912); and WILSON,
INTERNATIONAL LAW 78 (1920).
1974]
Professor Alf
511
thE' organs
of power ;)s)'er!
I hem ,~e/t: es
Any Limits?
139 ( 1947) .
416-17 ( 1918) .
11 Fenwick, op. cil., supra note 4 at 387 ,
l ~ Willia ms , Developments in Aerial Law, 75 U. PA , L. REv. 139, 140 (1926).
See DICKINSON. CASES AND OT HER RIi.\l1INGS IN THE LAW or N~TlO NS 376 (1929).
1 " I NTE RN ATIONAL
512
[VOL, 49
. . In the nineteenth century some writers advocated the establishment of an aerial zone above corresponding to the maritime
zone adjacent to state territory. The development during the twentieth century of radio communication and the use of the atmosphere
as a highway for many types of aircraft, balloons, etc., has given rise
to questions in regard to aerial jurisdiction. Some of these questions have been settled by conventions and others have gone before
courts. While the Hague Peace Conference of 1899 provided for the
use of balloons in war, these provisions were inadequate to meet
changing conditions and aerial navigation, and during the first decade
of the twentieth century attempts were made to draw up rules in
regard to the use of the air. In a preliminary statement, the Institute of International Law in 1906 declared that 'The air is free . States
have over it, in time of peace and in time of war, only the rights
necessary for preservation,' but the idea gradually gave way to the
idea that jurisdiction in the air appertained to the subjacent state."
Prior to World War II, rules were drawn up regulating the use of
radio communication both in peace and in the event of war. During the
war, countries found it necessary to issue proclamations limiting activity
in its airspace in addition to the censorship of radio messages. The Convention for the Regulation of Aerial Navigation of 1919 stated in its first
article: 12.
"The High Contracting Parties recognize that every Power has
complete and exclusive sovereignty over the air space above its territory.'
"For the purpose of the present Conven.tion the territory of a
State shall be understood as including the national territory, both
that of the mother country and of the colonies, and the territorial
waters adjacent thereto ."
D('spite the universal experience in two world wars that "States would
accept nothing less than complete authority over the air space above their
territory," a number of international conferences have been called to thresh
out the problem of aerial domain, such as that in 1944.13
Extent of Philippine Territorial Waters
12.
13
14
1974]
513
514
[VOL. 49
STORY, CONSTITUTION 207; Ct. 3 Bouvier's LAw DICTIONARY AND CONCISE ENCYCLOPEDIA 3096-97 (3rd ed.).
17 DE MADARIAGA THEORY AND PRACTICE IN INTERNAL RELATIONS
15-16 (1937)
18 Publication ~f the International Bureau of the Permanent Court' of Arbitration (1928); also published in 22 A.I . INT'L 867 (1928). See BRIGGS, THE
LAw OF NATIONS; CASES, DOCUMENTS, AND NOTES 173 (1942). It wiII be recalled that"
Huber was the Arbitrator chosen by the Netherlands and the United States in
the Las P."J.lmas (Miangas) case to determine the question of sovereignty olVer
the Island of Palm as (Miangas) in 1928.
19 Schooner Exchange v. McFadden, 7 Cranch. 116, 3 L .Ed . 287 (1812L
16
1974]
515
sent of the nation itself. They can flow from no other legitimate
source.
"This consent may be either expressed or implied. In the latter
case, it is less determinate, exposed more to the uncertainties of
construction, out, if understood, no less obligatory."
The extent of jurisdiction, according to Charles C. Soule and C. McCauley is as follows: (1) Territorial jurisdiction, (2) Jurisdiction over
persons, (3) Aerial jurisdiction, and (4) Maritime jurisdiction. Quite enlightening are their comments on these areas of jurisdiction : 20
Territorial Jurisdiction
"TerritOrial jurisdiction of a state extends over all land and enclosed water within its boundaries together with a three-mile margin
of water where it abuts upon the sea.
"The marine league. It has become a well established principle
of international law that a state exercises jurisdiction over a marginal sea extending a marine league (three miles) from a coast at
low tide . This principle was generally accepted at the time when
the effective range of artillery was about three miles. Efforts have
been made in recent years to increase the breadth of this belt to
correspond to the increase in artillery range, but such agreement has
not been reached to date.
"Jurisdiction over this marginal belt extends to
customs duties, secrecy of coast fortification, and to
fisheries. Vessels of all nations are allowed passage
waters in peace time but belligerent public vessels
their use in war, except under restricted conditions.
police control,
the control of
through these
are forbidden
516
[VOL. 49
For special jurisdiction and for that on straits, gulfs, bays, inland
seas and lakes, rivers, navigation, and fisheries, we have to turn to Wilson 21
whom we quoted earlier:
"Within the three-mile limit exclusive jurisdiction aver fisheries
and other undertakings is generally admitted.
"A wider special jurisdiction is often claimed, and generally admitted, for p'..arposes of administration of revenue, fisheries, and sanitary regulations, and for better policing of a coast. This is often
exteiided to ten miles, and sometimes to twelve miles. States often
make regulations for the coast trade, limiting such trade to vessels
flying their awn flag.
"Jurisdiction -
Straits
"Jurisdiction -
" Over gulfs and bays ~holly within the territorial limits, and over
such as are not more than six miles in width at the opening into
the sea, the jurisdiction is in the shore state or states. More extended jurisdiction is in some cases claimed and admitted.
21
WILSON,
1974]
517
Is Joint Jurisdiction
Yes, by two or
dominium, as in the
Germany and Great
Possible?
more states, over the same area - some sort of concase of Samoa by a general act of the United States,
Britain from 1889 to 1899. 22
23
518
[VOL. 49
American astronauts has not been made a basis for claims to additional
territory but rather for the common benefit of mankind, yet the flux of
histori~ development poses the possibility of such expansion. At any rate,
legal history points to variol's II;odes of territorial acquisition which cannot fail to interest the student of international law.
Oppenheim25 classifies these modes into original, such as occupation,
accretion, subjugation and prescription, and derivative, such as cession.
Can Sovereignty Be Suspended?
o~cupation,
26
IY741
519
We believe so. As a member of the family of nations, the Philippines, as a subject of international law, has experienced (and will further
experience) these various modes of acquiring and/or losing territory.
As to acquisition of territory, the mode of discoverlo was invoked
by Spain after the epochal voyage of Magellan and Elcano. But it was
discovery followed by occupation and conquest which won the Philippines
for Spain, as against the mere reliance by Portugal on the confirmation by
the Treaty of Tordesillas of the papal demarcation line.
The theory of suspended sovereignty found application in the Philippines dmin g the last War. "Three Years of Enemy Occupation" by the
late Senator Claro M. Recto remains as an outstanding reference on this
period of Philippine history.
The mode of cession became applicable to the Philippines at the
close of the Spanish-American War. The Treaty of Paris of December
10, 1898 was later supplemented by the treaty concluded at Washington
on November 7, 1900.
As to prescription, there is hardly any question that all the waters
comprehended within the territorial baselines of the Philippines, although
beyond three miles from the coastlines, may be considered to have been
acquired through this mode, aside from their being historic waters as encompassed within the limits of Philippine territory defined in the Paris
and Washington treaties just cited, for as Foulke31 observed, "No taking
of territory, therefore, which continues as a fact can be unlawful according
to international law, however repugnant to the principles of the municipal
law or ideas of morality and ethics." The present exertions of our statesmen and thinkers in espousing the axchipelagic doctrine find justification
not only in enlightened self-interest but in the very methods which interId., p. 311.
Drs. Gregorio F. Zaide (Philippine History and Civilization) and Eufronio
M. Alip (Cultural and Political History of the Philippines), Filipino historians .
would prefer the term "rediscovery", considering that it was the MalaY5 who
first found the Philippine Archipelago.
31 FOULKE, supra. note 7 at 329-30.
29
30
OPPENHEIM,
520
lVoL. 49
national law has sanctioned since time out of mind as part of Ihe Law of
Nations . What only remains is for the doctrine to gain acceptance among
the test of the nations most of which, unfortunately, arc not archipebgoes
like the Phili ppines, and therefore find no c0mpuision from their own
self-interest 10 actively support the stand of the Pbilippine delegation.
The very decision of the Permanent Court of Arbitration which rccognized
Las Palmas (Miangas) to belong to the Netherlands through long occupation
although that island is twenty miles inside the eastern baseline of the
Philippines as defined in Article III of the T reaty of Paris - that very
decision having recognized the uncontested title of the United States to
the entire Philippine Archipelago, excepting said island of Las Palmas may now be invoked as giving sinews to the Philippine advocacy of the
archipelagic doctrine and Philippine sovereignty over the said historic
waters, for il is the entire area embr;tced in said Article III of the Treaty
of Paris which the United States recognized as belonging to the Republic
of the Philippines when President Franklin Delano Roosevelt approved
the 1935 Constitution containing the ident ical definition of Philippine National Territory in Article I thereof.
0/
Philippil1(! Territoria/Waters?
1974]
521
parallel of north latitude. As practical men, they did not intend their
instrument to be later nullified by theorists on the maritime belt or the
three-mile limit by excluding the waters comprehended in the baselines fixed
by them. The ratification of these treaties by the Spanish and American
governments and by the world community of the political realities thus
brought about not only during the entire period of American rule but
also, and especially, after Philippine independence was granted and the
Republic of the Philippines became a full-fledged member of the United
Nations, have endowed the entire national territory of this country with
a prescriptive title of unimpeachable validity.
The Paris CommIssioners must have considered also the large bodies
of water between the principal islands which ruled out a literal observance
of the three-mile limit then in vogue. From the Balintang Channel in the
north to the Polillo Strait, the Verde Island Passage, the Mindoro Strait,
the Sibuyan Sea, the Visayan Sea, the Leyte Gulf, the Cuyo East and
West Passes, the Panay Gulf, the Mindanao Sea, the Sulu Sea, the Moro
Gulf, the Davao Gulf - all these and more are internal waters of the
Philippines; if excluded from Philippine sovereignty just because a ship
may not be nearer than three miles from the coasts of the nearest islands
while passing through , the independence contemplated in the Tydings
McDuffie Act would be set at naught, with a corresponding inefficacy in
criminal, customs, revenue, and fishery administration, and anemia in national security and defense.
It can be pointed out, of course, that Philippine jurisprudence has
given sanction to the three-mile rule. As the Supreme Court ruled in
the case of u.s. v. Bttll. 32
" . . . But the Standard (of which Bull was master) was a Norwegian vessel, and it is conceded that it was not registered or licensed
in the Philippine Islands under the laws thereof. . . No court of
the Philippine Islands had jurisdiction over an offense or crime committed on the high seas or within the territorial waters of any other
country. but when she came within three miles of a line drawn from
the headlands WhICh embrace the entrance to Manila Bay, she was
within teni torial waters, and a new set of principles became applicable. . . "
This ruling came at a time when Americans were a maJonty in the Supreme Court. It is to be admitted tbat the modern champions of the
three-mile limit are Great Britain, the United States, and, more recently,
Soviet Russia. These are maritime nations, with navies controlling the
seven seas; and although Great Britain herself is an island nation, the
British still believe, as Churchill said in the House of Commons during
the past War, that "Britannia still rules the waves." Since most countries
a2 IS Phil. 7, 12 (1910). See also People v. Lol-lo and Saraw, 43 Phil. 19, 22-23
(1922), and People v. Wong Cheng, 46 Phil. 729 (1922) .
522
[VOL . 49
of the world are not archipelagoes like the Philippines, the archipelagic
doctrine is experiencing an uphill fight for general acceptance. Even the
one-world concept, however, should .not dishearten us into abandoning the
doctrine which we share by geographic destiny with Indonesia and other
independent archipelagoes. Since our geography compels us to disagree
with those who would confine our control to the maritime belt as contradistinguished from the Open Sea,33 it is to our interest to make common cause with countries with geographic configurations and structures
similar to ours in the espousal of the archipelagic doctrine while acceding
to the right of innocent passage for ships of non-belligerent States.
33
34 Vol. 6, 420
(1965 ed.) .
AMADOR, THE EXPLOITATION AND CQNSERVATION OF THE RESOURCES OF THE SEA,
70-72 (2nd ed., 1959).
35
1974]
36
523
524
( VOL . 49
zones around suc h installa lions and dt'vices, and lak'!! measu res m:ccs
"The Phili ppines, it may be noted, has joi ned the laJ1!:c number
o f Stales which have asserted domin ion ove r contLnental shelf reo
sources. Under the Petwl cum Act, Republic Act No, 387, all natural
deposits or occurrences of petroleum or natu ral gas e n the continental
shell 'seaward from the shores of the rh.ili ppincs belong to the State,
inalienably and imprescripthciy.'
"How about the area beyond the continental shelf? On December
17, 1970, the General Assembly adopted a Resolution which affirmed
that there is an area of the seabed and the ocean floor, and the
subsoil thereof. beyond the limilS of national jurisdiction, 'the precise
limits of which are yet to be detennincd: and declared among othcr
th ings: (1) that said area should be the common heritage of mankind; (2) that not being subject of appropriation by any means, no
State shall claim or exercise sovereignty or sovereign rights o\'er any
part thereof; (3) that the a rea shall be opcn to use exclusively for
peaceful purposes by all S tates, whether coastal or landlocked, without discrimination, in accordance with the international regime to
be established; (4) that the exploration of the area and the exploitation of its resources shall be carried 0\11 for the benefit of mankind
as a whole, irrespective of the geographical location of the States ,
whether landlocked or coastal, and taking into particular considera
tion the interests and needs of the developing countries; (5) that
an internattonal regime applying to the area and its resources a nd
including appropriate international machinery to give effect to its
provisions shall be established by an international treaty of a universal character, generally agrced upon. The regime shall, inter alia,
provide for the orderly and safe develop ment and r.J.tional management of the a rea and its resources and for expanding opportunities
in the use thereof and ensure the equitable sharing by States in
the benefits der ived therefrom, taking intl) particular considcrution
the interests and needs of the de\'elcping countries, whet her landlocked or coastal. The limits of national jurisdiction, the international regime, including an intcrnational machinery, for thc area and
the resources of the sca.bed and the ocean floor, ami t he subsoil
thereof. beyond such limits, wcre taken up in tne Third Conference
on the Law of the Sea."
\Vbat
0/
OU [
historic
1974]
525
526
(VOL.. 49
1<)74)
527
the title it had acquired from the Sultanate, became vested with sovereignty
and dominion over North Borneo. "38
Prospects of the Philippine Position on Archipelagic Doctrtne
At this writing we can only see bright prospects for the Philippine
position on the archipelagic doctrine, although the Geneva Conference on
the Law of the Sea did not make concrete decisions on the Philippine
proposal. Basis 6f our optimism is the fact that we are not introducing
something new in juristic concept that still needs to find acceptance in
world chancelleries and international conferences. We are merely stll.ting
a right which we have long exercised over our historic waters and in the
internalional project to codify the law of the sea, that such right be given
expression to the mutual advantage of the participating nations. As Ambassador Tolentino said in his speech earlier alluded to:
"May I stress that in advocating the inclusion of the regime
of archipelagos in a convention on the law of the sea, the Philippines
is not seeking a new right for itself. While various proposals before
this Conference would create new rights and benefits - rights that
have never been asserted and benefits that were never enjoyed before - the archipelagic proposals would simply give international
recognition to our existing. right - long asserted, exercised and enjoyed - over our historic archipelagic waters.H39
528
[VOL . 49
41 As a matter of fact, we l).ave not had occasion to invoke our mutual defense
treaty with the United States. Even at the height of the Huk and Muslim
rebellion the latter of which the President has called the remaining obstacle to the
lifting of martial law, he publicly announced that the Philippine Armed Forces could
handle the situation without outside assistance. This, despite the fact, no longer
a secret, that some foreign power was helping finance the rebellion and supplying its minions with sophisticated weapons.