Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R No. 187167

August 16, 2011

PROF. MERLIN M. MAGALLONA, AKBAYAN PARTYLIST REP. RISA HONTIVEROS, PROF. HARRY C.
ROQUE, JR., AND UNIVERSITY OF THE PHILIPPINES
COLLEGE OF LAW STUDENTS, ALITHEA BARBARA
ACAS, VOLTAIRE ALFERES, CZARINA MAY ALTEZ,
FRANCIS ALVIN ASILO, SHERYL BALOT, RUBY AMOR
BARRACA, JOSE JAVIER BAUTISTA, ROMINA
BERNARDO, VALERIE PAGASA BUENAVENTURA,
EDAN MARRI CAETE, VANN ALLEN DELA CRUZ,
RENE DELORINO, PAULYN MAY DUMAN, SHARON
ESCOTO, RODRIGO FAJARDO III, GIRLIE FERRER,
RAOULLE OSEN FERRER, CARLA REGINA GREPO,
ANNA MARIE CECILIA GO, IRISH KAY KALAW, MARY
ANN JOY LEE, MARIA LUISA MANALAYSAY, MIGUEL
RAFAEL MUSNGI, MICHAEL OCAMPO, JAKLYN
HANNA PINEDA, WILLIAM RAGAMAT, MARICAR
RAMOS, ENRIK FORT REVILLAS, JAMES MARK TERRY
RIDON, JOHANN FRANTZ RIVERA IV, CHRISTIAN
RIVERO, DIANNE MARIE ROA, NICHOLAS SANTIZO,
MELISSA CHRISTINA SANTOS, CRISTINE MAE
TABING, VANESSA ANNE TORNO, MARIA ESTER
VANGUARDIA, and MARCELINO VELOSO
III, Petitioners,
vs.
HON. EDUARDO ERMITA, IN HIS CAPACITY AS
EXECUTIVE SECRETARY, HON. ALBERTO ROMULO,
IN HIS CAPACITY AS SECRETARY OF THE
DEPARTMENT OF FOREIGN AFFAIRS, HON.
ROLANDO ANDAYA, IN HIS CAPACITY AS
SECRETARY OF THE DEPARTMENT OF BUDGET AND
MANAGEMENT, HON. DIONY VENTURA, IN HIS
CAPACITY AS ADMINISTRATOR OF THE NATIONAL
MAPPING & RESOURCE INFORMATION AUTHORITY,
and HON. HILARIO DAVIDE, JR., IN HIS CAPACITY
AS REPRESENTATIVE OF THE PERMANENT MISSION
OF THE REPUBLIC OF THE PHILIPPINES TO THE
UNITED NATIONS,Respondents.
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.
Petitioners, professors of law, law students and a
legislator, in their respective capacities as "citizens,
taxpayers or x x x legislators,"9 as the case may be, assail
the constitutionality of RA 9522 on two principal grounds,
namely: (1) RA 9522 reduces Philippine maritime
territory, and logically, the reach of the Philippine states
sovereign power, in violation of Article 1 of the 1987
Constitution,10 embodying the terms of the Treaty of
Paris11 and ancillary treaties,12 and (2) RA 9522 opens the
countrys waters landward of the baselines to maritime
passage by all vessels and aircrafts, undermining
Philippine sovereignty and national security, contravening
the countrys nuclear-free policy, and damaging marine
resources, in violation of relevant constitutional
provisions.13
In addition, petitioners contend that RA 9522s treatment
of the KIG as "regime of islands" not only results in the
loss of a large maritime area but also prejudices the
livelihood of subsistence fishermen.14 To buttress their
argument of territorial diminution, petitioners facially
attack RA 9522 for what it excluded and included its
failure to reference either the Treaty of Paris or Sabah and
its use of UNCLOS IIIs framework of regime of islands to
determine the maritime zones of the KIG and the
Scarborough Shoal.
Commenting on the petition, respondent officials raised
threshold issues questioning (1) the petitions compliance
with the case or controversy requirement for judicial
review grounded on petitioners alleged lack of locus
standiand (2) the propriety of the writs of certiorari and
prohibition to assail the constitutionality of RA 9522. On
the merits, respondents defended RA 9522 as the
countrys compliance with the terms of UNCLOS III,
preserving Philippine territory over the KIG or
Scarborough Shoal. Respondents add that RA 9522 does
not undermine the countrys security, environment and

economic interests or relinquish the Philippines claim over

Sabah.

judicial or ministerial powers on the part of respondents

and resulting prejudice on the part of petitioners. 18

Respondents also question the normative force, under

international law, of petitioners assertion that what Spain
ceded to the United States under the Treaty of Paris were
the islands and all the waters found within the boundaries
of the rectangular area drawn under the Treaty of Paris.

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.

We left unacted petitioners prayer for an injunctive writ.

The Issues
The petition raises the following issues:
1. Preliminarily
1. Whether petitioners possess locus
standi to bring this suit; and
2. Whether the writs of certiorari and
prohibition are the proper remedies to
assail the constitutionality of RA 9522.
2. On the merits, whether RA 9522 is
unconstitutional.
The Ruling of the Court
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
Petitioners Possess Locus
Standi as Citizens
Petitioners themselves undermine their assertion of locus
standi as legislators and taxpayers because the petition
alleges neither infringement of legislative
prerogative15 nor misuse of public funds,16 occasioned by
the passage and implementation of RA 9522. Nonetheless,
we recognize petitioners locus standi as citizens with
constitutionally sufficient interest in the resolution of the
merits of the case which undoubtedly raises issues of
national significance necessitating urgent resolution.
Indeed, owing to the peculiar nature of RA 9522, it is
understandably difficult to find other litigants possessing
"a more direct and specific interest" to bring the suit, thus
satisfying one of the requirements for granting citizenship
standing.17
The Writs of Certiorari and Prohibition
Are Proper Remedies to Test
the Constitutionality of Statutes
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-

RA 9522 is Not Unconstitutional

RA 9522 is a Statutory Tool
to Demarcate the Countrys
Maritime Zones and Continental
Shelf Under UNCLOS III, not to
Delineate Philippine Territory
Petitioners submit that RA 9522 "dismembers a large
portion of the national territory"21 because it discards the
pre-UNCLOS III demarcation of Philippine territory under
the Treaty of Paris and related treaties, successively
encoded in the definition of national territory under the
1935, 1973 and 1987 Constitutions. Petitioners theorize
that this constitutional definition trumps any treaty or
statutory provision denying the Philippines sovereign
control over waters, beyond the territorial sea recognized
at the time of the Treaty of Paris, that Spain supposedly
ceded to the United States. Petitioners argue that from
the Treaty of Paris technical description, Philippine
sovereignty over territorial waters extends hundreds of
nautical miles around the Philippine archipelago,
embracing the rectangular area delineated in the Treaty of
Paris.22
Petitioners theory fails to persuade us.
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.23 UNCLOS 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).

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

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
RA 9522s Use of the Framework
of Regime of Islands to Determine the
Maritime Zones of the KIG and the
Scarborough Shoal, not Inconsistent
with the Philippines Claim of Sovereignty
Over these Areas
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.1avvphi1

Internal or
archipelagic
waters
Territorial
Sea
Exclusive
Economic
Zone
TOTAL

Extent of maritime
area using RA 3046,
as amended, taking
into account the
Treaty of Paris
delimitation (in
square nautical
miles)
166,858

Extent of
maritime area
using RA 9522,
taking into
account
UNCLOS III (in
square nautical
miles)
171,435

274,136

32,106
382,669

440,994

586,210

Thus, as the map below shows, the reach of the exclusive

economic zone drawn under RA 9522 even extends way
beyond the waters covered by the rectangular
demarcation under the Treaty of Paris. Of course, where
there are overlapping exclusive economic zones of
opposite or adjacent States, there will have to be a
delineation of maritime boundaries in accordance with
UNCLOS III.30
(insert Philippine map )
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:
SEC. 2. The baselines 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 and
b) Bajo de Masinloc, also known as Scarborough
Shoal. (Emphasis supplied)
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

Although the Philippines has consistently claimed

sovereignty over the KIG32 and the Scarborough Shoal for
several decades, these outlying areas are located at an

appreciable distance from the nearest shoreline of the

Philippine archipelago,33 such that any straight baseline
loped around them from the nearest basepoint will
inevitably "depart to an appreciable extent from the
general configuration of the archipelago."
The principal sponsor of RA 9522 in the Senate, Senator
Miriam Defensor-Santiago, took pains to emphasize the
foregoing during the Senate deliberations:
What we call the Kalayaan Island Group or what the rest
of the world call[] the Spratlys and the Scarborough Shoal
are outside our archipelagic baseline because if we put
them inside our baselines we might be accused of
violating the provision of international law which states:
"The drawing of such baseline shall not depart to any
appreciable extent from the general configuration of the
archipelago." So sa loob ng ating baseline, dapat
magkalapit ang mga islands. Dahil malayo ang

Scarborough Shoal, hindi natin masasabing malapit sila sa

atin although we are still allowed by international law to
claim them as our own.
This is called contested islands outside our configuration.
We see that our archipelago is defined by the orange line
which [we] call[] archipelagic baseline. Ngayon, tingnan
ninyo ang maliit na circle doon sa itaas, that is
Scarborough Shoal, itong malaking circle sa ibaba, that is
Kalayaan Group or the Spratlys. Malayo na sila sa ating
archipelago kaya kung ilihis pa natin ang dating
archipelagic baselines para lamang masama itong
dalawang circles, hindi na sila magkalapit at baka hindi na
tatanggapin ng United Nations because of the rule that it
should follow the natural configuration of the
archipelago.34 (Emphasis supplied)
Similarly, the length of one baseline that RA 3046 drew
exceeded UNCLOS IIIs limits.1avvphi1 The need to
shorten this baseline, and in addition, to optimize the
location of basepoints using current maps, became
imperative as discussed by respondents:

Statutory Claim Over Sabah under

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 Actis
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)
UNCLOS III and RA 9522 not
Incompatible with the Constitutions
Delineation of Internal Waters

[T]he amendment of the baselines law was necessary to

enable the Philippines to draw the outer limits of its
maritime zones including the extended continental shelf in
the manner provided by Article 47 of [UNCLOS III]. As
defined by R.A. 3046, as amended by R.A. 5446, the
baselines suffer from some technical deficiencies, to wit:

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

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."

Whether referred to as Philippine "internal waters" under

Article I of the Constitution39 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. UNCLOS III affirms
this:

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 121"36 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

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
4. The regime of archipelagic sea lanes passage
established in this Part shall not in other
respects affect the status of the archipelagic
waters, including the sea lanes, or the exercise
by the archipelagic State of its sovereignty
over such waters and their air space, bed
and subsoil, and the resources contained
therein. (Emphasis supplied)

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
branches 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.40 Indeed, bills drawing nautical highways for sea
lanes passage are now pending in Congress.41
In the absence of municipal legislation, international law
norms, now codified in UNCLOS III, operate to grant
innocent passage rights over the territorial sea or
archipelagic waters, subject to the treatys limitations and
conditions for their exercise.42 Significantly, the right of
innocent passage is a customary international law,43 thus
automatically incorporated in the corpus of Philippine
law.44 No modern State can validly invoke its sovereignty
to absolutely forbid innocent passage that is exercised in
accordance with customary international law without
risking retaliatory measures from the international
community.
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
Petitioners invocation of non-executory constitutional
provisions in Article II (Declaration of Principles and State
Policies)48 must also fail. Our present state of
jurisprudence considers the provisions in Article II as
mere legislative guides, which, absent enabling legislation,
"do not embody judicially enforceable constitutional rights
x x x."49 Article II provisions serve as guides in
formulating and interpreting implementing legislation, as
well as in interpreting executory provisions of the
Constitution. Although Oposa v. Factoran50 treated the
right to a healthful and balanced ecology under Section 16
of Article II as an exception, the present petition lacks
factual basis to substantiate the claimed constitutional
violation. The other provisions petitioners cite, relating to
the protection of marine wealth (Article XII, Section 2,
paragraph 251 ) and subsistence fishermen (Article XIII,
Section 752 ), are not violated by RA 9522.

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.
WHEREFORE, we DISMISS the petition.
SO ORDERED.

Footnotes
Entitled "An Act to Amend Certain Provisions of
Republic Act No. 3046, as Amended by Republic Act
No. 5446, to Define the Archipelagic Baselines of the
Philippines, and for Other Purposes."
1

Entitled "An Act to Define the Baselines of the

Territorial Sea of the Philippines."
2

The third "Whereas Clause" of RA 3046 expresses

the import of treating the Philippines as an
archipelagic State:

ten-year period will be counted from that

date. Thus, RA 9522, which took effect
on 27 March 2009, barely met the
deadline.

"WHEREAS, all the waters around, between,

and connecting the various islands of the
Philippine archipelago, irrespective of their
width or dimensions, have always been
considered as necessary appurtenances of the
land territory, forming part of the inland waters
of the Philippines."
One of the four conventions framed during the first
United Nations Convention on the Law of the Sea in
Geneva, this treaty, excluding the Philippines, entered
into force on 10 September 1964.
4

UNCLOS III entered into force on 16 November

1994.
5

Rollo, p. 34.

Which provides: "The national territory comprises

the Philippine archipelago, with all the islands and
waters embraced therein, and all other territories over
which the Philippines has sovereignty or jurisdiction,
consisting of its terrestrial, fluvial, and aerial domains,
including its territorial sea, the seabed, the subsoil,
the insular shelves, and other submarine areas. 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."
10

Entered into between the Unites States and Spain

on 10 December 1898 following the conclusion of the
Spanish-American War. Under the terms of the treaty,
Spain ceded to the United States "the archipelago
known as the Philippine Islands" lying within its
technical description.
11

The Philippines signed the treaty on 10 December

1982.
6

Article 47, paragraphs 1-3, provide:

1. An archipelagic State may draw straight
archipelagic baselines 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.

The Treaty of Washington, between Spain and the

United States (7 November 1900), transferring to the
US the islands of Cagayan, Sulu, and Sibutu and the
US-Great Britain Convention (2 January 1930)
demarcating boundary lines between the Philippines
and North Borneo.
12

13

Article II, Section 7, Section 8, and Section 16.

Allegedly in violation of Article XII, Section 2,

paragraph 2 and Article XIII, Section 7 of the
Constitution.
14

Kilosbayan, Inc. v. Morato, 320 Phil. 171, 186

(1995).
15

3. The drawing of such baselines shall not depart

to any appreciable extent from the general
configuration of the archipelago. (Emphasis
supplied)
xxxx

Pascual v. Secretary of Public Works, 110 Phil. 331

(1960); Sanidad v. COMELEC, 165 Phil. 303 (1976).
16

Francisco, Jr. v. House of Representatives, 460 Phil.

830, 899 (2003) citing Kilosbayan, Inc. v.
Guingona,Jr., G.R. No. 113375, 5 May 1994, 232
SCRA 110, 155-156 (1995) (Feliciano, J., concurring).
The two other factors are: "the character of funds or
assets involved in the controversy and a clear
disregard of constitutional or statutory prohibition."
Id.
17

UNCLOS III entered into force on 16 November

1994. The deadline for the filing of application is
mandated in Article 4, Annex II: "Where a coastal
State intends to establish, in accordance with article
76, the outer limits of its continental shelf beyond 200
nautical miles, it shall submit particulars of such limits
to the Commission along with supporting scientific
and technical data as soon as possible but in any case
within 10 years of the entry into force of this
Convention for that State. The coastal State shall at
the same time give the names of any Commission
members who have provided it with scientific and
technical advice." (Underscoring supplied)
8

In a subsequent meeting, the States

parties agreed that for States which
became bound by the treaty before 13
May 1999 (such as the Philippines) the

18

. Rollo, pp. 144-147.

See e.g. Aquino III v. COMELEC, G.R. No. 189793,

7 April 2010, 617 SCRA 623 (dismissing a petition for
certiorari and prohibition assailing the constitutionality
of Republic Act No. 9716, not for the impropriety of
remedy but for lack of merit); Aldaba v. COMELEC,
G.R. No. 188078, 25 January 2010, 611 SCRA 137
(issuing the writ of prohibition to declare
unconstitutional Republic Act No. 9591); Macalintal v.
COMELEC, 453 Phil. 586 (2003) (issuing the writs of
19

certiorari and prohibition declaring unconstitutional

portions of Republic Act No. 9189).
See e.g. Neri v. Senate Committee on
Accountability of Public Officers and Investigations,
G.R. No. 180643, 25 March 2008, 549 SCRA 77
(granting a writ of certiorari against the Philippine
Senate and nullifying the Senate contempt order
issued against petitioner).

KIG lies around 80 nautical miles west of

Palawan while Scarborough Shoal is around 123
nautical west of Zambales.
33

20

21

Journal, Senate 14th Congress 44th Session

1416 (27 January 2009).
34

35

Rollo, p. 159.

36

Section 2, RA 9522.

37

Article 121 provides: "Regime of islands.

Rollo, p. 31.

Respondents state in their Comment that

petitioners theory "has not been accepted or
recognized by either the United States or Spain," the
parties to the Treaty of Paris. Respondents add that
"no State is known to have supported this
proposition." Rollo, p. 179.
22

UNCLOS III belongs to that larger corpus of

international law of the sea, which petitioner
Magallona himself defined as "a body of treaty rules
and customary norms governing the uses of the sea,
the exploitation of its resources, and the exercise of
jurisdiction over maritime regimes. x x x x" (Merlin M.
Magallona, Primer on the Law of the Sea 1 [1997])
(Italicization supplied).
23

Following Article 47 (1) of UNCLOS III which

provides:

1. An island is a naturally formed area of land,

surrounded by water, which is above water at
high tide.
2. Except as provided for in paragraph 3, the
territorial sea, the contiguous zone, the exclusive
economic zone and the continental shelf of an
island are determined in accordance with the
provisions of this Convention applicable to other
land territory.
3. Rocks which cannot sustain human habitation
or economic life of their own shall have no
exclusive economic zone or continental shelf."

24

An archipelagic State may draw straight

archipelagic baselines joining the
outermost points of theoutermost
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. (Emphasis supplied)
Under the United Nations Charter, use of force
is no longer a valid means of acquiring territory.
25

The last paragraph of the preamble of UNCLOS

III states that "matters not regulated by this
Convention continue to be governed by the rules
and principles of general international law."

38

Rollo, pp. 56-57, 60-64.

Paragraph 2, Section 2, Article XII of the

Constitution uses the term "archipelagic waters"
separately from "territorial sea." Under UNCLOS
III, an archipelagic State may have internal
waters such as those enclosed by closing lines
across bays and mouths of rivers. See Article 50,
UNCLOS III. Moreover, Article 8 (2) of UNCLOS III
provides: "Where the establishment of a straight
baseline in accordance with the method set forth
in article 7 has the effect of enclosing as internal
waters areas which had not previously been
considered as such, a right of innocent passage
as provided in this Convention shall exist in those
waters." (Emphasis supplied)
39

26

Mandated under Articles 52 and 53 of UNCLOS

III:
40

Article 52. Right of innocent passage.

27

Rollo, p. 51.

28

Id. at 51-52, 64-66.

Based on figures respondents submitted in their

Comment (id. at 182).
29

30

Under Article 74.

31

See note 7.

Presidential Decree No. 1596 classifies the KIG

as a municipality of Palawan.
32

1. Subject to article 53 and without prejudice

to article 50, ships of all States enjoy the
right of innocent passage through
archipelagic waters, in accordance with
Part II, section 3.
2. 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.

(Emphasis supplied)

9. In designating or substituting sea lanes or

prescribing or substituting traffic separation
schemes, an archipelagic State shall refer
proposals to the competent international
organization with a view to their adoption. The
organization may adopt only such sea lanes and
traffic separation schemes as may be agreed
with the archipelagic State, after which the
archipelagic State may designate, prescribe or
substitute them.

Article 53. Right of archipelagic sea lanes

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

10. The archipelagic State shall clearly indicate

the axis of the sea lanes and the traffic
separation schemes designated or prescribed by
it on charts to which due publicity shall be
given.

2. All ships and aircraft enjoy the right of

archipelagic sea lanes passage in such sea
lanes and air routes.

11. Ships in archipelagic sea lanes passage

shall respect applicable sea lanes and traffic
separation schemes established in accordance
with this article.

3. Archipelagic sea lanes passage means the

exercise in accordance with this Convention of
the rights of navigation and overflight in the
normal mode solely for the purpose of
continuous, expeditious and unobstructed
transit between one part of the high seas or an
exclusive economic zone and another part of
the high seas or an exclusive economic zone.
4. Such sea lanes and air routes shall traverse
the archipelagic waters and the adjacent
territorial sea and shall include all normal
passage routes used as routes for international
navigation or overflight through or over
archipelagic waters and, within such routes, so
far as ships are concerned, all normal
navigational channels, provided that duplication
of routes of similar convenience between the
same entry and exit points shall not be
necessary.
5. Such sea lanes and air routes shall be
defined by a series of continuous axis lines from
the entry points of passage routes to the exit
points. Ships and aircraft in archipelagic sea
lanes passage shall not deviate more than 25
nautical miles to either side of such axis lines
during passage, provided that such ships and
aircraft shall not navigate closer to the coasts
than 10 per cent of the distance between the
nearest points on islands bordering the sea
lane.
6. An archipelagic State which designates sea
lanes under this article may also prescribe
traffic separation schemes for the safe passage
of ships through narrow channels in such sea
lanes.
7. An archipelagic State may, when
circumstances require, after giving due publicity
thereto, substitute other sea lanes or traffic
separation schemes for any sea lanes or traffic
separation schemes previously designated or
prescribed by it.
8. Such sea lanes and traffic separation
schemes shall conform to generally accepted
international regulations.

12. If an archipelagic State does not designate

sea lanes or air routes, the right of archipelagic
sea lanes passage may be exercised through
the routes normally used for international
navigation. (Emphasis supplied)
Namely, House Bill No. 4153 and Senate Bill No.
2738, identically titled "AN ACT TO ESTABLISH
THE ARCHIPELAGIC SEA LANES IN THE
PHILIPPINE ARCHIPELAGIC WATERS,
PRESCRIBING THE RIGHTS AND OBLIGATIONS
OF FOREIGN SHIPS AND AIRCRAFTS EXERCISING
THE RIGHT OF ARCHIPELAGIC SEA LANES
PASSAGE THROUGH THE ESTABLISHED
ARCHIPELAGIC SEA LANES AND PROVIDING FOR
THE ASSOCIATED PROTECTIVE MEASURES
THEREIN."
41

42

The relevant provision of UNCLOS III provides:

Article 17. Right of innocent passage.
Subject to this Convention, ships of all
States, whether coastal or landlocked, enjoy the right of innocent passage
through the territorial sea. (Emphasis
supplied)
Article 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.
2. Passage of a foreign ship shall be
considered to be prejudicial to the peace,
good order or security of the coastal
State if in the territorial sea it engages in
any of the following activities:

(a) any threat or use of force against the

sovereignty, territorial integrity or political
independence of the coastal State, or in any
other manner in violation of the principles of
international law embodied in the Charter of the
United Nations;

(d) the conservation of the living

resources of the sea;

(b) any exercise or practice with weapons of

any kind;

(f) the preservation of the environment

of the coastal State and the prevention,
reduction and control of pollution thereof;

(e) the prevention of infringement of the

fisheries laws and regulations of the
coastal State;

(c) any act aimed at collecting information to

the prejudice of the defence or security of the
coastal State;

(g) marine scientific research and

hydrographic surveys;

(d) any act of propaganda aimed at affecting

the defence or security of the coastal State;

(h) the prevention of infringement of the

customs, fiscal, immigration or sanitary
laws and regulations of the coastal State.

(e) the launching, landing or taking on board of

any aircraft;

2. Such laws and regulations shall not

apply to the design, construction,
manning or equipment of foreign ships
unless they are giving effect to generally
accepted international rules or standards.

(f) the launching, landing or taking on board of

any military device;
(g) the loading or unloading of any commodity,
currency or person contrary to the customs,
fiscal, immigration or sanitary laws and
regulations of the coastal State;

3. The coastal State shall give due

publicity to all such laws and regulations.
4. Foreign ships exercising the right of
innocent passage through the territorial
sea shall comply with all such laws and
regulations and all generally accepted
international regulations relating to the
prevention of collisions at sea.

(h) any act of willful and serious pollution

contrary to this Convention;
(i) any fishing activities;
(j) the carrying out of research or survey
activities;
(k) any act aimed at interfering with any
systems of communication or any other
facilities or installations of the coastal State;
(l) any other activity not having a direct bearing
on passage
Article 21. Laws and regulations of the coastal State
relating to innocent passage.
1. The coastal State may adopt laws and
regulations, in conformity with the provisions of
this Convention and other rules of international
law, relating to innocent passage through the
territorial sea, in respect of all or any of the
following:
(a) the safety of navigation and the
regulation of maritime traffic;
(b) the protection of navigational aids
and facilities and other facilities or
installations;
(c) the protection of cables and pipelines;

The right of innocent passage through the

territorial sea applies only to ships and not to
aircrafts (Article 17, UNCLOS III). The right of
innocent passage of aircrafts through the
sovereign territory of a State arises only under an
international agreement. In contrast, the right of
innocent passage through archipelagic waters
applies to both ships and aircrafts (Article 53
(12), UNCLOS III).
43

Following Section 2, Article II of the

Constitution: "Section 2. The Philippines
renounces war as an instrument of national
policy, adopts the generally accepted
principles of international law as part of the
law of the land and adheres to the policy of
peace, equality, justice, freedom, cooperation,
and amity with all nations." (Emphasis supplied)
44

"Archipelagic sea lanes passage is essentially

the same as transit passage through straits" to
which the territorial sea of continental coastal
State is subject. R.R. Churabill and A.V. Lowe, The
Law of the Sea 127 (1999).
45

Falling under Article 121 of UNCLOS III (see

note 37).
46

Within the exclusive economic zone, other

States enjoy the following rights under UNCLOS
III:
47

10

Article 58. Rights and duties of other States in the

exclusive economic zone.
1. In the exclusive economic zone, all States,
whether coastal or land-locked, enjoy, subject to
the relevant provisions of this Convention, the
freedoms referred to in article 87 of navigation
and overflight and of the laying of submarine
cables and pipelines, and other internationally
lawful uses of the sea related to these freedoms,
such as those associated with the operation of
ships, aircraft and submarine cables and
pipelines, and compatible with the other
provisions of this Convention.
2. Articles 88 to 115 and other pertinent rules of
international law apply to the exclusive economic
zone in so far as they are not incompatible with
this Part.
xxxx
Beyond the exclusive economic zone, other States
enjoy the freedom of the high seas, defined under
UNCLOS III as follows:
Article 87. Freedom of the high seas.
1. The high seas are open to all States, whether
coastal or land-locked. Freedom of the high seas
is exercised under the conditions laid down by
this Convention and by other rules of international
law. It comprises, inter alia, both for coastal and
land-locked States:

2. These freedoms shall be exercised by all States

with due regard for the interests of other States
in their exercise of the freedom of the high seas,
and also with due regard for the rights under this
Convention with respect to activities in the Area.
48

See note 13.

Kilosbayan, Inc. v. Morato, 316 Phil. 652, 698

(1995); Taada v. Angara, 338 Phil. 546, 580581 (1997).
49

50

G.R. No. 101083, 30 July 1993, 224 SCRA 792.

"The State shall protect the nations marine

wealth in its archipelagic waters, territorial sea,
and exclusive economic zone, and reserve its use
and enjoyment exclusively to Filipino citizens."
51

"The State shall protect the rights of

subsistence fishermen, especially of local
communities, to the preferential use of the
communal marine and fishing resources, both
inland and offshore. It shall provide support to
such fishermen through appropriate technology
and research, adequate financial, production, and
marketing assistance, and other services. The
State shall also protect, develop, and conserve
such resources. The protection shall extend to
offshore fishing grounds of subsistence fishermen
against foreign intrusion. Fishworkers shall
receive a just share from their labor in the
utilization of marine and fishing resources."
52

This can extend up to 350 nautical miles if the

coastal State proves its right to claim an
extended continental shelf (see UNCLOS III,
Article 76, paragraphs 4(a), 5 and 6, in relation to
Article 77).
53

(a) freedom of navigation;

(b) freedom of overflight;
(c) freedom to lay submarine cables and
pipelines, subject to Part VI;

54

Rollo, pp. 67-69.

Article 47 (1) provides: "An archipelagic

State may draw straight archipelagic baselines
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."
(Emphasis supplied) in the Area.
55

(d) freedom to construct artificial islands and

other installations permitted under international
law, subject to Part VI;
(e) freedom of fishing, subject to the conditions
laid down in section 2;
(f) freedom of scientific research, subject to Parts
VI and XIII.

11