Introduction

There appears to be much disagreement, if not chaos, arising from discussions on certain law of the sea concerns of the Philippines. Politics is clearly a factor here, but undeniably, there is likewise an issue concerning the appreciation of the law(s).

As a sovereign state, the Philippines has a government and exercises sovereignty over its subjects and its territory. Generally speaking, such authority of a sovereign state is to be exercised free from outside intervention. Included in this plenary authority is the power of a sovereign state to make (domestic) laws based upon a supreme fundamental law, the constitution. However, it has to be realized as well that the Philippines is a member of the international community. In its dealings with the international community, it is expected to comply with its international obligations arising from international conventions or treaties, inter alia.

In the field of international maritime law the 1982 United Nations Convention on the Law of the Sea (LOSC), regarded as the ‘constitution of the oceans’, is considered as the fundamental law. To state an essential point, there is friction between what Philippine domestic laws provide and what international law, particularly the LOSC, prescribes. It is submitted that this friction contributes largely to much confusion in regard to the understanding of certain law of the sea issues of the Philippines, two of which are presented here.

The concept of an archipelagic state

The concept of an archipelagic state is one of the novel and noble ideas of the Third United Nations Conference on the Law of the Sea which adopted the LOSC in 1982. As early as the mid-20th century, states composed of several islands – hence, an archipelago – put forth the idea that they should be permitted to draw their baselines such that these baselines would encompass all the islands of the state including all the waters in between such islands. States such as Indonesia and the Philippines proposed this idea as an alternative to drawing baselines individually around each land mass pertaining to the state. As a simplistic, if not crude, illustration, one may imagine the four plates of a diamond-shaped baseball field as the islands composing a state. Prior to the development of the concept of an archipelagic state, baselines were to be drawn individually around each plate. From these baselines, maritime zones would be generated. Thus, the legal status of the waters in between the islands could be quite varied – if the state had a 6nm territorial sea and there was a distance of 15nm in between two of its islands, the first 6nm counted from the baselines of the two islands would be territorial sea. However, the remaining 3nm area could no longer be territorial sea. Under the concept of an archipelagic state, an archipelagic state is permitted to draw its baselines, i.e. archipelagic baselines, around all of the four plates. Hence, the state’s baselines shall effectively trace the entire diamond-shaped baseball field thereby making all the waters in between as the archipelagic waters of that state, without prejudice to the possibility of having internal waters therein. Whilst deemed part of the territorial sea over which it exercises sovereignty, the prerogative of an archipelagic state in relation to the archipelagic waters is highly qualified in exchange for the international community’s recognition of the concept of an archipelagic state as part of international law. This compromise appears sound in view of the fact that waters which were not territorial sea before can now be considered part of the territorial sea, more specifically as archipelagic waters, of that archipelagic state.

When the Philippine state ratified the LOSC, among its declarations was that ‘7. The concept of archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines […]’. At the time the Constitution referred to was the 1973 Constitution, the pertinent provision of which states:

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 right 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 waters of the Philippines. (Emphasis and underscoring supplied)

Clearly, there is an incongruence in the understanding of archipelagic waters under the LOSC and the Philippine Constitution. It should be noted that in respect of internal waters, a state exercises unqualified sovereignty – e.g. without its consent, foreign ships cannot enter or pass through internal waters. Indeed, this idea is quite different from the highly qualified sovereignty that a state exercises over its archipelagic waters per the LOSC. Thus, when the Philippine legislature enacted Republic Act (RA) No. 9522 (‘Archipelagic Baselines Law’) in 2009, this legislation was met with a Supreme Court case contesting its constitutionality. It was argued that the Archipelagic Baselines Law would be tantamount to surrendering the unqualified sovereignty of the Philippine state over the waters around, between and connecting the islands of the Philippine archipelago. In any event, the constitutionality of the law was upheld by the Philippine Supreme Court.

Suffice it to state that the understanding of the legal nature of the archipelagic waters of the Philippines may vary depending on whether it is based upon domestic law or international law.

The extent of a state’s ‘maritime territory’

By the 19th century, the idea of a territorial sea was generally established under international law. However, it was only during the 1930 Hague Conference for the Codification of International Law when the nature of the rights possessed by a coastal state over its territorial sea was settled. At said conference, it was determined that a coastal state exercises territorial sovereignty over the territorial sea including the seabed and subsoil underneath and the airspace above. Stated otherwise, the idea that the territorial sea is part of a coastal state’s territory was established.

Later developments in the law of the sea led to the doctrine of ‘sovereign rights’, which are distinct and different from ‘sovereignty’. Prior to the LOSC, the breadth of the territorial sea was not yet established under international law – some states claimed a territorial sea of less than 12nm, others more. Precisely because of the hesitation over and objection to an extensive claim of a territorial sea that the doctrine of ‘sovereign rights’ was developed. The idea was that whilst the breadth of the territorial sea over which sovereignty was exercised was to be limited, the coastal state would nevertheless be entitled to exploit the resources beyond its territorial sea – under the doctrine of ‘sovereign rights’. Simply put, the rights of the coastal state over said resources are sovereign. However, these sovereign rights in favour of a coastal state are not to prejudice the non-economic use by other states of said maritime areas which are already beyond the coastal state’s territorial sea. This arrangement presents the balance struck in regard to the issue of the breadth of the territorial sea. This doctrine of ‘sovereign rights’ would be the foundation of the continental shelf regime and the exclusive economic zone (EEZ) regime, which are fairly established in the LOSC.

It must be taken from the foregoing that there is a distinction between sovereignty and sovereign rights. It must be understood that the former applies to a state’s territory – land or maritime, i.e. territorial sea – the latter, to the continental shelf and to the EEZ, if any. Clearly, two distinct doctrines apply to these different maritime zones. The LOSC does not grant unto a coastal state sovereignty beyond its territorial sea; the areas beyond the territorial sea cannot be deemed part of a coastal state’s territory.

On the other part, the Philippine Constitution defines national territory thus:

ARTICLE I – National Territory

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.

The first clause of the first sentence may not pose problems considering that the waters within the archipelago may be deemed archipelagic waters and hence, part of the territorial sea. However, following the Constitution, claims are likewise made that even the continental shelf and the EEZ form part of the national territory since the Philippines exercises jurisdiction over said zones.

Clearly, there is a discrepancy as regards the extent of the national territory if viewed from the perspective of the LOSC, on the one part and from the perspective of the Philippine Constitution, on the other part. Whilst under the LOSC a claim of territorial sovereignty extends only up to the territorial sea, under the Constitution arguments are made so as to include the continental shelf and the EEZ as part of national territory.

Conclusion

Those engaged in debates over law of the sea issues of the Philippines put forth arguments anchored upon different legal bases – international law, specifically the LOSC on the one part, and domestic law, essentially the Philippine Constitution, on the other part. It is as though they are playing a sport under different sets of rules that which leaves spectators more confused. This discrepancy must be borne in mind whenever law of the sea issues concerning the Philippines are discussed.

It appears imperative that rules be harmonized so that there can be a more constructive discussion of issues. Truly, the Constitution is the fundamental law of the land; however, being a member of the international community, states have international obligations as well. Compliance with these obligations is heavily expected when they stem from conventional rules arising from a treaty or an international convention such as the LOSC. Certainly, adherence to the rule of international (maritime) law, which prevents internal and external conflicts that undermine national interest, cannot be fairly deemed inconsistent with patriotism.

1. Atty. Yano is presently a lecturer at the IMO – International Maritime Law Institute in Malta. The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of any organization or his affiliations.
2. Otherwise known as 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
3. Including the outer continental shelf; Benham Rise forms part of the outer continental shelf of the Philippines.