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With all due respect

My great and undiminished respect for former Chief Justice Hilario G. Davide Jr. notwithstanding, I have to respond to what I consider to be unfair comments in respect to the ConCom’s draft on national territory.

Here is my explanation of the entire Article I in full.

The Con-Com draft asserts sovereignty. The formulation does not confine itself to setting out the metes and bounds of Philippine territory, but is a categorical assertion of sovereignty. It is in perfect accord with the present state of international law. Thus Brownlie writes:

“The state territory and its appurtenances (airspace and territorial sea) together with the government and population within its frontiers comprise the physical and social manifestations of the primary type of international legal person, the state. The legal competence and the rules for their protection depend on and assume the existence of a stable, physically delimited homeland.”

(Ian Brownlie, Principles Public International Law, 4th Ed., pp. 107–108)

Notice that the 1987 Constitution involves question-begging. It starts by declaring “the national territory comprises” and further on says “and all other territories over which the Philippines has sovereignty and jurisdiction.” How can that be an answer to the question: Over what does the Philippines exercise sovereignty?

By contrast, the Con-Com draft is clear: (1) Islands and waters encompassed by archipelagic baselines (2) territorial sea (3) seabed (4) subsoil (5) airspace (6) Islands and features outside the archipelagic baselines but that by Philippine and international law constitute territory of the Philippines such as the Kalayaan Island group.

The malformed concept of “insular shelves” that was in the 1987 Constitution has been excised, there being no correspondence in international law for it.

The troublesome if not clearly erroneous characterization of the waters encompassed by archipelagic baselines in the 1987

Constitution as “internal waters” has been eliminated, although it remains explicit that the Philippines has sovereignty over such waters.

The inclusion of seabed and subsoil is once more consistent with international law and should be construed to refer to the seabed and subsoil of the territorial sea. “The territorial sea comprises the seabed and its subsoil, the adjacent waters and its airspace.” (Yoshifumi Tanaka, The International Law of the Sea, 2nd Ed., p. 84)

There is nothing that corresponds to this proposed paragraph of Section 1 in the 1987 Constitution. The Kalayaan Island Group and the Scarborough Shoal are part of Philippine territory over which the Philippines exercises sovereignty. This portion of the proposed article is engendered principally by international law and, domestically, by the judgment of the Supreme Court in Magallona v. Ermita, G.R. 187167 (August 16, 2011).

Significantly, the Court held in the Magallona case precisely on the issue of the Regime of Islands covering the Kalayaan Island Group and the Scarborough Shoal:

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” of UNCLOS III manifests the Philippine State’s 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.

As regards “territories belong to the Philippines by “historic right or legal title,” this phraseology was used in the Constitution of 1973, and its purpose in the present Con-Com draft is to assert our claim to sovereignty over even those territories that may not now presently be under our effective control, as in the case of North Borneo, but which we claim “by historic right.”

The importance of “original territory” in international law is underscored by Giuliano, Scovazzi and Treves who write: “E se qualche internazionlista ha ritenuto talvolta di porsi anche il problema del ‘titolo’ dellos Stato alla voranità territorial sulla cerchiz spaziale della sua formazione orginaria, le considerazioni svolte in proposito sono state sempre alquanto vaghe ed hanno finite con l’evocare concetti, che, come l’immemoriabile o il possesso, confluiscono in definitive verso l’assunzione, a presupposto della voranità stessa, della pura e emplace affermazione dello State entro un data àmbito spaziale con caratteri di normalità e stabilità. (M. Giuliano, T. Scovazzi, T. Treves, Diritto Internazionale, Vol. II, pp. 32–33) In brief: the “bias” of international law is always towards the original territory of the state, and this, it suggests by using such terms, otherwise vague, as “immemorial.”

Retired Chief Justice Hilario Davide Jr. is reported to have complained that the West Philippine Sea does not even feature in the Con-Com’s proposal. With all due respect to CJ Davide, that question should be raised in respect to the 1987 Constitution. By contrast, the Con-Com’s draft enshrines in our Constitution what we gained from the arbitral judgment.

In PCA Case No. 2013-19 (12 July 2016) In the Matter of the South China Sea Arbitration between The Republic of the Philippines and the People’s Republic of China, on the significant rulings of the tribunal was “With respect to Submission No. 2, for the reasons set above, the Tribunal concludes that, as between the Philippines and China, China’s claim to historic rights, or other sovereign rights or jurisdiction, with respect to the maritime areas of the South China Sea encompassed by the relevant part of the nine-dash line are contrary to the Convention and without lawful effect to the extent that they exceed the geographic and substantive limits of China’s maritime entitlements under the Convention. The Tribunal concludes that the Convention superseded any historic rights or other sovereign rights or jurisdiction in excess of the limits imposed therein.”

Consequently, the draft now asserts sovereign rights over the “maritime expanse beyond its territorial sea” – and this expanse will be in all directions. There is absolutely no reason to claim that the West Philippine Sea is not included.

A separate section was needed because the claim to sovereignty that appertains to territory must be distinguished from sovereign rights, about which it would be impermissible likewise for a Constitution to be silent, especially in the face of aggressive expansionism on one front.

“It is important to note that the sovereign rights of the coastal State over the EEZ are essentially limited to economic exploration and exploitation. In this respect, the concept of sovereign rights must be distinguished from territorial sovereignty, which is comprehensive unless international law provides otherwise.” (Tanaka, p. 130)

In respect to the continental shelf, the main source of this proposal of the Con-Com is what the Commission on the Limits of the Continental Shelf adopted: “Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Submission made by the Philippines in Respect to the Benham rise Region on April 8, 2009” and adopted by the Commission on April 12, 2012.

While it is settled in international law what the rights of a coastal state are in respect to its continental shelf, the qualifier “extended” is used because of the following observation of the Commission: “The outer edge of the continental margin, established from the foot of the continental slope (FOS) of the Benham rise Region by applying the provisions of Article 76, paragraph 4 of the Convention, extends beyond the 200 M limits of the Philippines. On this basis, the Commission recognizes the legal entitlement of the Philippines to delineate the outer limits of its continental shelf beyond its 200 M limits in this region.” (p. 5)

By this provision, the Constitution is, in effect, fixing the outer limits of the continental shelf beyond 200 nautical miles. It will be noted that this submission was through the office of Chief Justice Hilario Davide who was then Permanent Representative of the Philippines to the UN. And the Philippines did fix the outer limits through this submission to the Commission that approved of the revised delimitation with the further directive that “the Philippines proceed to establish the outer limits of the continental shelf beyond 200 M accordingly.” The fixed points will have be set forth in an appropriate statute.

The necessity of referring to an “extended continental shelf”, i.e., continental shelf beyond the 200 M limit is pointed out by Tanaka: “A question that may arise is whether or not non-State-Parties to the LOSC may claim a continental shelf beyond 200 nautical miles under customary international law. It seems very difficult to find extensive and virtually uniform State practice and opinio juris with regard to the continental shelf beyond 200 nautical miles. Hence it would be difficult to argue that the continental shelf beyond 200 nautical miles is part of customary international law.” (Tanaka, p. 145)

“Where the continental shelf of a state extends beyond 200 miles, article 82 of the Convention provides that the coastal state must make payments or contributions in kind in respect of the exploitation of the non-living resources of the continental shelf beyond the 200-mile limit.” (Shaw, 427)

Topics: Hilario G Davide Jr , Ian Brownlie , 1987 Philippine Constitution , ConCom , West Philippine Sea

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