Extent of maritime area Extent of maritime area

using RA 3046, as using RA 9522, taking into

amended, taking into account UNCLOS III (in
account the Treaty of square nautical miles)
Paris' delimitation (in
square nautical miles)
Internal or 166,858 171,435
archipelagic
waters
Territorial Sea 274,136 32,106
Exclusive 382,669
Economic Zone
TOTAL 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]

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 KIG [32] 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 III's limits. The
need to shorten this baseline, and in addition, to optimize the location of basepoints using current
maps, became imperative as discussed by respondents:
[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:
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."
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 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.[37]

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 Act is 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 Constitution's
Delineation of Internal Waters

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]

Whether referred to as Philippine "internal waters" under Article I of the Constitution[39] 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:
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 treaty's 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 passage[45] does not place them in lesser footing vis-à-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. Factoran[50] 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 2[51]) and subsistence fishermen (Article XIII, Section 7[52]), 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 III[55] 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 country's
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.

Corona, C.J., Leonardo-De Castro, Brion, Bersamin, Peralta, Villarama, Jr., Del Castillo, Abad,
Mendoza, and Sereno, JJ., concur.
Velasco, Jr., J., pls. see concurring opinion.
Perez, J., on leave.

[1]
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."
[2]
Entitled "An Act to Define the Baselines of the Territorial Sea of the Philippines."
[3]
The third "Whereas Clause" of RA 3046 expresses the import of treating the Philippines as an
archipelagic State:
"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."
[4]
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.
[5]
UNCLOS III entered into force on 16 November 1994.
[6]
The Philippines signed the treaty on 10 December 1982.
[7]
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.

3. The drawing of such baselines shall not depart to any appreciable extent from the general
configuration of the archipelago. (Emphasis supplied)

xxxx
[8]
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 article76, the outer limits of its continental shelf beyond 200nautical 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 10years 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)

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 ten-year period will be counted from that
date. Thus, RA 9522, which took effect on 27 March 2009, barely met the deadline.
[9]
Rollo, p. 34.
[10]
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."
[11]
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.
[12]
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.
[13]
Article II, Section 7, Section 8, and Section 16.
[14]
Allegedly in violation of Article XII, Section 2, paragraph 2 and Article XIII, Section 7 of the
Constitution.
[15]
Kilosbayan, Inc. v. Morato, 320 Phil. 171, 186 (1995).
[16]
Pascual v. Secretary of Public Works, 110 Phil. 331 (1960); Sanidad v. COMELEC, 165 Phil.
303 (1976).
[17]
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.
[18]
Rollo, pp. 144-147.
[19]
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 certiorari and prohibition declaring unconstitutional portions of Republic
Act No. 9189).
[20]
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).
[21]
Rollo, p. 31.
[22]
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.
[23]
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).
[24]
Following Article 47 (1) of UNCLOS III which 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)

[25]
Under the United Nations Charter, use of force is no longer a valid means of acquiring
territory.

[26]
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."