The national territory in federal PH

Aunique feature of the Philippine Constitution is the definition of the national territory which is not usually found in constitutions of other countries. The national territory as defined by the 1935 Constitution consisted of all the territory ceded to the United States under the Treaty of Paris of 1898 between America and Spain, and all the islands embraced in the Washington Treaty of 1900 between America and Spain, and the Treaty of 1930 between America and Great Britain, and all the territory over which the government of the Philippine Islands then exercised jurisdiction.

The 1973 Constitution defined national territory as comprising the Philippine archipelago, and all the other territories belonging to the Philippines by historic or legal title, or over which the Philippines has sovereignty or jurisdiction. It also included what came to be known under the United Nations Convention on the Law of the Sea (Unclos) as the archipelagic waters, or the waters around, between, and connecting the islands of the archipelago, irrespective of their breadth and dimensions. Under the Unclos, the archipelagic waters are considered internal waters, subject to the right of innocent passage by foreign vessels.

The 1987 Constitution introduces a modified definition of the national territory with the deletion of the reference to territory claimed by legal or historic title. The deleted phrase was perceived as dropping the Philippine territorial claim over Sabah. The 1987 Constitution defines the national territory as comprising the Philippine archipelago, the archipelagic waters, and all other territories over which the Philippines has sovereignty or jurisdiction.

The draft of the proposed federal constitution of the Philippines prepared by the current ruling party defines the national territory as comprising the Philippine archipelago, the archipelagic waters, and all other territories over which the Philippines has sovereignty or jurisdiction. The proposed draft restores the Philippine claim over Sabah with the inclusion of the islands and territorial waters claimed by the Philippines out of historic title, and bolsters its claim over the contested regime of islands, the Spratlys, with the phrase “by discovery, or other means recognized under international law or conventions.”

Noticeable in the proposed provision on national territory is the inclusion of the exclusive economic zone (EEZ) as defined under the Unclos. The inclusion runs afoul of the Unclos itself, which stipulates that a littoral state exercises rights of sovereignty over the territorial sea, limited rights of sovereignty over the contiguous zone, and sovereign rights only over the EEZ.

There is a difference between rights of sovereignty and sovereign rights. A sovereign right is a legal right possessed by a state which enables it to perform its official functions for the benefit of the public. Sovereign right is attributed through authority of law, or in the case of the EEZ, the Unclos. A sovereign right does not include law enforcement.

The new constitution under a federal Philippines basically expands the territorial sea beyond the 12-mile limit measured seaward from the low-water mark baselines prescribed by the Unclos. With the inclusion of the EEZ within the national territory, the Philippines is claiming territorial sea consisting of a 200-mile breadth measured seaward from the low-water mark baselines. The inclusion of the EEZ within the national territory cannot give the country better or greater rights over the EEZ than that conferred upon it by the Unclos.

Under the pacta sunt servanda doctrine, the Philippines cannot renege on its commitments under the Unclos, including the observance of limits to maritime zones and entitlements. The doctrine is a customary rule of international law deemed subsumed into Philippine domestic law pursuant to the incorporation clause of the 1987 Constitution.

Frank E. Lobrigo practiced law for 20 years. He is a law lecturer and JSD student at San Beda College Graduate School of Law in Manila.