Article 1: National Territory

Video Presentation

Definitions:
o National Territory
 O.E.C.D
 Dr. Tran Cong Thuc

Uniqueness of the 1987 Philippine Constitution

o Binding force of such provision under International Law.
o Value of provision defining our national territory.
o Acquisition of other territories.
o Theory of Constitutional Silence by O. Doyle (Devoid of further discussion, only
the most essential knowledge needed.)

National territory of the Philippines

o Land Territory (Public Domain & Private Ownership)
o Maritime Territory (Fluvial & Maritime)
o Archipelagic Water
 The Archipelagic Doctrine: History, Definition, Benefit & Importance
o Contiguous Zone
o Exclusive Economic Zones (EEZs)
o Aerial Domain (The Philippine Airspace & Outer Space)

Issues Pertaining to National Territory

o Pending Philippine Claim to Sabah (Malaysia v. Philippines)
 Introduction, Historical Background, Claims of both sides, Conclusion
o Scarborough Shoal & Spratly Island dispute (China v. Philippines)
 Recognition by U.N. Convention on Law of the seas and the 2016 ruling of
the Permanent Court of Arbitration.

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ARTICLE 1: 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 dimensio ns,
form part of the internal waters of the Philippines.

UNIQUENESS OF THE 1987 PHILPPINE CONSTITUTION

Although 87 percent of national constitutions explicitly reference their national territory in some
way, only 14 percent attempt to delineate that territory with any specificity (one of which is the
Republic of the Philippines).

A. Binding force of such provision under International Law.

A state under the international law has the unquestioned right to assert jurisdic tio n
throughout the extent of its territory. If there is a territorial dispute it should be settled to the
international law.

B. Value of provision defining our national territory.

It is important to know so that we and the other nations would know the boundaries of our
country.

C. Acquisition of other territories.

Does not prevent the Philippines from acquiring new territories by means of purchase,
exchange, and such.

D. Theory of Constitutional Silence by O. Doyle

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1. Introduction

Geographical specificity has long been a fundamental but underexplored element in our
understanding of legal systems and states. Hart commented that “in almost every part of the world
that is thought of as a separate ‘country’ there are legal systems. . . .”1 Loughlin refers to the three
fundamental elements of the state in the Staatslehre tradition: territory, ruling authority, and
people. In comparative constitutional law, considerable attention is paid to liminal instances of
territory, such as secession2 and territorial contestation.3 However, there has been remarkably little
conceptualization of this most basic feature of legal systems and constitutional orders, namely,
that they are geographically limited. Constitutions almost universally present themselves as made
by and for a particular people living in a particular place. This geographic referent underpins all
analysis of a constitution’s democratic credentials (and therefore the structure of government it
creates), the appropriate amendment method, and the legitimacy of constitutional replacement.
Furthermore, without properly understanding the territoriality of law in core, uncontested
instances, we lack the analytical tools to address more contentious cases. In this article, therefore,
I employ comparative constitutional analysis to develop and test a new theory of legal territoriality,
before addressing how constitutional orders can both anticipate and respond to secession and
territorial contestation.

An original dataset of national constitutional provisions reveals a curious dichotomy. Although 87

percent of national constitutions explicitly reference their national territory in some way, only 14
percent attempt to delineate that territory with any specificity. This phenomenon of general but not
absolute constitutional silence provides a new insight into the geographical specificity of laws. I
argue that the silent conventions of a geographically located group determine the geographica l
scope of a constitution’s application. Constitutional delineations of the national territory are
therefore unnecessary. Nevertheless, textual delineations of territory can achieve three purposes:
they can clarify the silent conventions, express territorial claims over contested territory, and
contract the scope of the constitutional order. This analysis reframes the debate on whether
constitutions should grant a right to secede, while also focusing attention on how constitutions can
be sites of territorial contestation.

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7. Territorial contestation

Posited constitutional laws play an important role in expressing claims to territory, especially
where the territory is not under the de facto control of the constitutional order. This expressive
role, however, means that constitutions are sites for the escalation of territorial contestation. We
saw above how the Japanese Diet enacted legislation that claims the Kuril Islands/Norther n
Territories as part of Japan, notwithstanding that they are controlled by Russia. In the highly
unlikely event that Japan were to amend its Constitution to make such a claim, this would be a
significant escalation of the territorial contestation.

Constitutions, however, can also be sites for de-escalation. As noted above, article 2 of the Irish
Constitution used to provide that the national territory consisted of “the whole island of Ireland,
its islands and the territorial seas.” As part of the Northern Ireland peace settlement, a referendum
reframed reunification in the following terms: “the firm will of the Irish Nation, in harmony and
friendship, to unite all the people who share the territory of the island of Ireland, in all the diversity
of their identities and traditions, recognising that a united Ireland shall be brought about only by
peaceful means with the consent of a majority of the people, democratically expressed, in both
jurisdictions in the island.” The Westminster Parliament enacted the Northern Ireland Act 1998,
section 1 of which provides that Northern Ireland will cease to be part of the United Kingdom if a
majority of people in Northern Ireland vote to be part of a united Ireland.

The constitutional amendments significantly de-escalated territorial contestation. From the Irish
perspective, it was the contraction of an expressive claim about constitutional territory. This did
not change the geographical referent in Ireland’s ultimate rule of recognition: since before the
enactment of the 1937 Constitution, it had been accepted that the people in the 26 counties of
southern Ireland could adopt a constitution with actual effect in that part of Ireland. Although the
people of Northern Ireland have been given a measure of territorial control, they have only two
choices: continuation in the United Kingdom or reunification with Ireland. Northern Ireland has
not been granted a right to secede, as such. In political terms, the peace settlement can only be
welcomed for its focus on the interests and preferences of those who inhabit the contested territory,
rather than the claims of those who live elsewhere. However, this focus concedes the territoria l

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legitimacy of Northern Ireland, a concession that Dublin could not have made when Northern
Ireland was carved out in 1922, or even when the constitution was drafted in 1937. As with much
else about territory, nothing succeeds like longevity.

8. Conclusion

In this article, I have used the concept of constitutional silence to argue that the territorial scope of
legal systems is a matter of constitutional law but cannot be directly determined by constitutio na l
text. Instead, legal systems depend on an ultimate rule of recognition that necessarily contains a
geographic referent, reflecting the geographic range of the officials whose actions constitute the
ultimate rule. The necessary inclusion of that geographic referent means that the ultimate rule of
recognition, once conceived as a normative proposition, determines the territorial scope of its legal
system. This conclusion makes sense of the fact that most national constitutions explicitly
presuppose a clear understanding of their national territory without making any attempt to define
what that territory is. This theory also explains textual delineations of national territory as attempts
to clarify the geographic referent of the ultimate rule of recognition, contract the scope of national
territory, or express a territorial claim. This analysis illuminates the ways in which written and
silent constitutional law can interact, providing a framework for the analysis of deeply contested
issues in public law, such as secession and territorial disputes.

This analysis of constitutional territory provisions has implications for our understanding of
constitutional silence more generally. Some constitutional silence is inevitable in constitutio na l
orders. Constitutional texts are not self-executing but instead depend on foundational decisions
reflected in unwritten conventional rules.51 Given the role that these rules play in constituting the
constitutional order, it is not unreasonable to characterize them as constitutional rules. However,
the silence of conventional constitutional rules differs significantly from other instances of
constitutional silence. Where constitutional silence consists of implicit constitutional norms, this
empowers those vested with the interpretative authority to render those norms explicit. Where
constitutional silence consists of an absence of constitutional norms, this empowers those politica l
actors most likely to be constrained by constitutional norms. However, where constitutional silence
is a case of conventional rules, different considerations arise. Because they cannot be deliberately

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changed, conventional constitutional rules constrain the constitutional actors—both judicial and
political—whose continuing actions preserve the constitutional rule. In other words, the
constitutional silence of conventional rules is not the same as constitutional absence. An
understanding of this interaction between silent and posited rules enables new ways of grappling
with some of the most fundamental challenges that confront constitutional orders.

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 The Philippine National Territory – by Lowell Bautista

Geographical Context. The Republic of the Philippines is an archipelago of more than 7,100
islands in the South China Sea occupying a land area of 298,170 square kilometers, with a coastline
of over 36,000 kilometers in length. It is bounded by the Pacific Ocean on the east, the Celebes
Sea and Bornean waters on the south, and the South China Sea on the west and north. It lies off
the coast of Southeast Asia, forming a discontinuous chain of islands stretching 1,840 kilometers
from north to south separating the Pacific Ocean from the mainland Asian continent. It is
surrounded by a number of seas with deep troughs: one on Luzon island, another in the Sulu Sea,
a third in the Celebes Sea, and the fourth in the Mindanao trench or the Philippine Deep, east of
Samar and Surigao. The geographical configuration of the Philippine Archipelago, as defined in
the Treaty of Paris, appears to be in the form of a vast rectangle, measuring 600 miles (966 km) in
width and more than 1,200 miles (1,932 km) in length. Statement of the Philippine Position. The
Philippines traces its present title to that of the United States, as its successor-state to the territory
ceded by Spain to the United States. The Philippines claims that it acquired its current territoria l
boundaries marked on the map by what is called the “Philippine Treaty Limits” on the basis of
three treaties: first, the Treaty of Paris between Spain and the United States of 10 December 1898;
second, the Treaty of Washington between the United States and Spain of 7 November 1900; and
lastly, the Treaty concluded between the United States and Great Britain on 2 January 1930
(Bautista, 2008). The Republic of the Philippines argues that the line described in accordance with
the Philippine Treaty Limits constitutes the territorial limits of the Philippine archipelago. The
Constitution of the Republic of the Philippines specifically defines the extent of its national
territory. It is categorically defined both in the 1935 and 1973 Constitutions, and in the latest and
still in force, 1987 Constitution. It should be noted that it is only in the 1935 Philippine Constitutio n
that there is explicit reference to the colonial treaties defining the Philippine Treaty Limits as
comprising the national territory of the Philippines. The 1973 and 1987 Philippine Constitutio ns
no longer mention these colonial treaties, which has raised questions internally whether the treaties
remain incorporated in the constitutional definition of the Philippine national territory. The
constitutional definition of the national territory is the primary source of the difficulty of aligning
domestic legislation with the obligations of the Philippines under the LOSC. This constitutio na l
definition is further reflected in domestic legislation. The Philippines has enacted domestic

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legislation that provide for the various maritime jurisdictional zones in the LOSC, such as the
territorial sea, contiguous zone, exclusive economic zone, and continental shelf, which all predate
the Convention itself.

IN ADDITION TO THIS ONE, FROM a research study called, ‘Defining the National Territory:
Security and Foreign Relations Dimensions’ by Aileen Baviera

EPILOGUE PART: Since this paper was written in 2008, a number of significant changes have
taken place, rendering parts of the paper outdated. In March 2009 the Philippine President signed
into law Republic Act 9522, or the Philippine Baselines Law. The new law amended the previous
baselines law (RA 3036 as amended by RA 5446) in order to make the national baselines complia nt

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with international obligations under the UN Convention on the Law of the Sea. It enclosed only
the Philippines’ main archipelago in baselines, but declared the Kalayaan Island Group as well as
Scarborough Shoal under a “regime of islands.”

In 2012 China wrested control of Scarborough Shoal from the Philippines after a ten-week
standoff. Fishermen from Zambales, Pangasinan, and Bataan who traditionally fished in those seas
lost valuable fishing grounds. In response, the Philippines filed a case for arbitration under the
International Tribunal of the Law of the Sea against China’s nine-dash lines claims enclosing
nearly 90 percent of the South China Sea. Tensions over disputed territories and maritime
resources mounted not only between the Philippines and China, but between China and Vietnam
in both the Paracels and Spratlys, and between China and Japan in the Senkakus, as China
expanded administrative jurisdictions. China also started reclamation and construction on certain
reefs within the Philippines’ Exclusive Economic Zone.

IN ADDITION TO THIS ONE, FROM an annex in the aforementioned research study called,
Towards a Strategic Framework for Management of the West Philippine Sea, a white paper by
THE WPS INFORMAL EXPERT GROUP

Contextualizing the Philippines and the West Philippine Sea Issues

1. The Philippines is a strategically located, resource-rich archipelago, lying at the maritime

crossroads of Northeast and Southeast Asia, and connecting the South China Sea with the Pacific
Ocean. It has been called a quintessential coastal state, an archipelagic and maritime nation with
over 7,000 islands, entirely surrounded and interconnected by seas. Not many towns or cities in
the country are more than 100 km from shore. 78% of its provinces and 54% of municipalities,
almost all major cities, and 62% of the population are coastal. Just as the seas have shaped our
history and the formation of the nation, we continue to depend on them for our livelihood and
welfare, for communications and transportation, for defense and security, for leisure and the
enjoyment of nature’s blessings.

2. The Philippines is the 12th most populous country in the world. While endowed with
considerable mineral wealth, the world’s richest marine biodiversity and a strong pool of human
resources, we suffer from widespread poverty, frequent natural disasters and vulnerability to

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climate change hazards. Generations of poor governance and inequitable social structures have
also impeded economic progress, especially in comparison with rapidly growing neighbor ing
states in the East Asian region.

3. The Philippines has signed and ratified the United Nations Convention on the Law of the Sea
(UNCLOS), which grants coastal states sovereign rights over economic resources, as well as legal
jurisdictions over certain types of sea-based activities within the 200 nm EEZ and the continen ta l
shelf measured from their baselines. UNCLOS offers the Philippines major advantages in terms of
access to resources and some forms of regulatory jurisdiction over two million square kilometers
of water and the seabed beneath. Through UNCLOS, the Philippines and Indonesia introduced and
joined forces to gain acceptance of the concept of the archipelagic State. We successfully secured
the international community’s recognition of our exclusive sovereignty over all waters around,
between and connecting the different islands within the Philippine Archipelago, subject to certain
limitations on distances between base points. Without the archipelagic State concept enshrined in
Part IV of the UNCLOS, the Philippines would have remained a scattering of islands separated by
high seas. UNCLOS also provides guidance for states with overlapping jurisdictional claims, who
may then resort to a range of peaceful dispute settlement mechanisms, among them the
International Tribunal on the Law of the Sea (ITLOS), the International Court of Justice (ICJ), and
arbitration arrangements. As of June 3, 2011, 163 states had ratified the UNCLOS.

4. The SCS borders the entire western seaboard of the country. Several key provinces includ ing
Ilocos Norte, Ilocos Sur, La Union, Pangasinan, Zambales, Bataan, Mindoro, and Palawan face
the SCS. The sea is extremely significant from an international navigational, economic,
geopolitical and strategic perspective, thus making the Philippines strategically important. Oil and
gas resources have been proven to exist in areas adjacent to and closest to the coastlines of littoral
states. Fisheries throughout the area have historically supported the survival of coastal populations
and are vital to food security in the region. Coral reef ecosystems in the nearshore and offshore
areas nurture and propagate the region’s supply of fish. Commercial as well as military navigatio n
have established the SCS as a major waterway and a lifeline for trade and energy supplies
connecting countries in the Middle East, Africa, and South, Southeast, and Northeast Asia. Several
countries—the Philippines, Brunei, China, Malaysia, Taiwan and Vietnam—have competing
claims to all or part of the SCS, while great powers such as the United States and China are

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beginning to compete for naval power and influence here, thus making it a potential regional
flashpoint.

Law Enforcement and Contributing to Good Order at Sea

1. Pursuant to UNCLOS, the Philippines as a coastal and archipelagic state has exclusive sovereign
rights to explore and exploit the living and non-living resources within its 200 nm EEZ and
continental shelf. It exercises full sovereignty over its 12 nm territorial sea measured from its
archipelagic baselines, and over all archipelagic waters enclosed within them, subject only to the
recognition of innocent and archipelagic sea lane passage rights in favor of foreign ships. There is
debate, however, on whether, when, and where to establish archipelagic sea lanes.

Asserting Sovereignty over Territory and Exercising Sovereign Rights over the Exclusive
Economic Zone

1. The EEZ/continental shelf under UNCLOS should not be confused with and regarded as
equivalent to land territory over which a coastal State exercises full sovereignty and control.
Within the EEZ/continental shelf, a coastal State is generally entitled to exclusive sovereign rights
to explore and exploit the living and non-living natural resources of the superjacent waters (in the
case of the EEZ) and the seabed and subsoil (in the case of the continental shelf). These are rights
that are less than full sovereignty, and are ancillary to an adjacent territorial sea or land area. 2.
While focus has been on the exclusivity of maritime territories and jurisdictions, UNCLOS also
requires coastal States to cooperate pending the resolution of disputes, and encourages them to
share the resources of the sea through provisional agreements like joint development arrangeme nts.
Part IX of UNCLOS also allows cooperation and shared management of semi-enclosed seas like
the South China Sea

Guiding Principles and Major Recommendations

The following are proposed guiding principles for Philippine policy on the West Philippine Sea:

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1. The West Philippine Sea and its resources are part of the national patrimony. Our national
interest in the WPS is defined as that which will serve the greatest good of the greatest number of
the Filipino people.

2. Our policies and strategies with respect to resource development, defense, law enforceme nt,
diplomacy, and international law shall be consistent with this definition of the national interest.

3. We affirm commitment to the peaceful settlement of inter-state disputes on the basis of justice,
equality, mutual respect, and upholding internationally accepted rules and norms of behavior.

4. We affirm commitment to an independent foreign policy that upholds the dignity of the Filipino
people and our tradition of courage and self-reliance;

5. WPS policy should demonstrate the positive contributions that the Philippines and the Filipino
people can make to the Asia Pacific region and to the world

DEFINITION OF NATIONAL TERRITORY

From OECD - All the territory within the national boundaries, including the national environme nt.

From Dr. Tran Cong Truc - National territory is the space delimited by that nation's borders. Within
the territory, the state of that nation owns and has supreme legislative, executive, and judicia l
powers. The mentioned supreme power is called "national sovereignty", whose connotation
claims that all political, economic, cultural, and social issues belonging to a nation must be decided
by that state, while other nations, as well as international organizations have no right to intervene.
Each and every organization and individual residing in the territory of a nation must abide by the
nation's laws unless otherwise regulated by international treaties that the nation acts as a signatory.

In addition, when it comes to special territorial parts, such as the territorial water contiguous zone,
exclusive economic zone, continental shelf, military ship, state-duty military vessels, Ambassador,
Consular Agency ... the owning country can exercise only "limited sovereignty", which means the
owning country must comply with the laws of the host country and the provisions of the relevant

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international treaties of which the owning country is a signatory. For example, the coastal state
only exercises its sovereign right and jurisdiction over the area adjacent to the territorial sea,
exclusive economic zone and continental shelf.

National territory is one of the three basic and essential constituents of the State; which are:
Territory, Population, and State. Without its territorial element, a State cannot exist in its true
meaning.

National territory is the material foundation and environment for each State to exist and develop
in indispensable relations in many respects with its neighboring, regional, and internatio na l
countries.

TERRITORY – is defined as the fixed portion on the surface of the earth on which the States
settles and over which it has supreme authority. The components of the territory of the state are
the: terrestrial, fluvial, maritime, and aerial domains.

There are two types of land territory or terrestrial domains:

a.) Public Dominion – includes those for public use, those for public service, and those for
the development of national wealth (such as roads, government buildings, forests, and mineal
lands.

b.) Private Ownership – consists of patrimonial properties (a property owned by the State
that is not devoted to public use, public service or to the development of the national wealth.) of
the government such as lands acquired through escheat (property or money for which no owner
can be found and for that reason becomes the property of the state) proceedings and those vested
in individuals whether owned singly or collectively. Examples of this are friar lands, escheated
properties and commercial buildings.

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There are two types of maritime territory or fluvial/maritime domains:

a.) Internal waters – Covers all water and waterways on the landward side of the baseline.
The coastal state is free to set laws, regulate use, and use any resource.

Foreign vessels have NO right of passage within internal waters.

b.) Territorial waters – Out to 12 nautical miles from the baseline, the coastal state is free
to set laws, regulate use, and use any resource.

Vessels were given the right of “innocent passage” through any territorial waters, with strategic
straits allowing the passage of military craft as “transit passage”, in that, naval vessels are allowed
to maintain postures that would be illegal in territorial waters.

Innocent Passage – defined by the convention as passing through waters in an expeditious and
continuous matter, which is not “prejudicial to the peace, good order or the security” of the coastal
state.

What makes a foreign vessel violate the terms of ‘innocent passage’? – Fishing, polluting, weapons
practice (such as conducting military drills) and espionage are not ‘innocent’ and submarines and
other underwater vehicles are required to navigate on the surface and to show their flag.

Nations can also temporarily suspend innocent passage in specific areas of their territorial seas, if
doing so is essential for the protection of its security. Article 25, paragraph 3, of the United Nations
Convention on the Law of the Sea of 10 December 1982 stipulates that a coastal State may, without
discrimination in form or in fact among foreign ships, suspend temporarily, in specified areas of
its territorial sea the innocent passage of foreign ships if such suspension is essential for the
protection of its security. The grounds for suspension provided by Paragraph 2, Article 19 of the
Convention are the following:

(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;

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(b) any exercise or practice with weapons of any kind;

(c) any act aimed at collecting information to the prejudice of the defence or security of the coastal
State;

(d) any act of propaganda aimed at affecting the defence or security of the coastal State;

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

(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;

(h) any act of wilful 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.

Such suspension takes effect, according to the same article, only after having been duly published.

c.) Archipelagic waters – The convention set the definition of Archipelagic States in Part
IV, which also defines how the state can draw its territorial borders. A baseline is drawn between
the outermost points of the outermost islands, subject to these points being sufficiently close to
one another. All waters inside this baseline will be Archipelagic Waters and included as part of
the state’s internal waters.

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 PHILIPPINES AS AN ARCHIPELAGIC STATE AND THE
ARCHIPELAGIC DOCTRINE.

DEFINITION

An archipelagic state is a designation used for island countries that consist of an archipelago.
Article 46 of the UNCLOS defines ‘Archipelagic states’ as:

(a) "archipelagic State" means a State constituted wholly by one or more archipelagos and may
include other islands;

(b) "archipelago" means a group of islands, including parts of islands, interconnecting waters and
other natural features which are so closely interrelated that such islands, waters and other natural
features form an intrinsic geographical, economic and political entity, or which historically have
been regarded as such.

The Republic of the Philippines is an archipelago of more than 7,100 islands in the South China
Sea occupying a land area of 298,170 square kilometers, with a coastline of over 36,000 kilometers
in length. (L. Bautista, 2009).

ARCHIPELAGIC DOCTRINE & THE PHILIPPINE BASELINES LAW OF 2009 (RA 9522)

Under this concept ("archipelagic doctrine"), an archipelago shall be regarded as a single unit, so
that 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 state, and are subject to its exclusive
sovereignty.

Paragraph 1, Article 47 of the Convention states that “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.”

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Paragraph 2, Article 47 of the Convention provides the maximum extent a coastal state can draw
its baseline. The paragraph 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.”

Prior to RA 9522, Philippine baselines law (RA 3046, amended RA 5446) is not compliant with
UNCLOS. On 10 March 2009, the President of the Philippines signed into law Republic Act 9522.
This was immediately protested by China and Vietnam.

Why RA 3046, as amended by RA 5446, is not in compliance with UNCLOS?

• The existing 80 baselines delineated under RA 3046 have a total length of 8,174.8974 miles.

• Three (3) of these 80 baselines or 2.4% of the total number of baselines exceed 100 miles in
length

• The baseline to the southeast of Mindanao in the Gulf of Moro is of 140.05 miles in length. This
is beyond the 125 miles limit under UNCLOS

Criteria for choosing the best option in defining the baselines

• Consistent with UNCLOS and international law (Primary reason why it is amended again)

• Upholds national interests

• Acceptable to international community (In a way that China and Vietnam deemed it acceptable
and to avoid international escalation of conflict.)

What is the definition of the “Regime of Islands”

The UNCLOS, Article 121, defines an island as a naturally formed area of land, surrounded by water, which
is above water at high tide. Under the "regime of islands," each island has its own territorial sea, contiguous
zone, EEZ, and continental shelf.

-From an excerpt on the site owned by the Senate, sourced from Article 121 of the UNCLOS

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So there are 4 options for delineating the baselines of the Philippine Archipelago:

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OPTION 1 - Enclosing Main Archipelago and Scarborough Shoal; KIG as Regime of Islands

• Maximizes area

• UNCLOS compliant

OPTION 2 - Enclosing Main Archipelago only; KIG and Scarborough as Regime of Islands

• UNCLOS compliant

• Preserves diplomatic relations

• Preferred by the Arroyo Administration and was chosen option for RA 9522

OPTION 3 - Enclosing Main Archipelago and KIG; Scarborough as Regime of Islands

• Not UNCLOS-compliant

• Violates commitment under the ASEAN Declaration of Conduct of Parties in the South China
Sea in 2002

OPTION 4 - Enclosing Main Archipelago, KIG and Scarborough Shoal;

• Not UNCLOS compliant

• Violates commitment under ASEAN Declaration on the Conduct of Parties in the South China
Sea

CONCLUSION

• The new baselines law assures compliance with UNCLOS

• It reaffirms Philippines’ commitment to the ASEAN-China Declaration on the Code of Conduct

in the South China Sea.

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 HISTORICAL CONTEXT, IMPORTANCE, AND ADVANTAGE OF THE
ARCHIPELAGIC DOCTRINE FOR THE PHILIPPINES

The concept of an Archipelagic State came from one of the neighboring countries near the
Philippines. The Republic of Indonesia, the largest archipelagic state by length was the first nation
to bring forward the Archipelagic Doctrine during the U.N Conference on the Law of the Sea held
in Caracas in 1974. Below is the historical context of the Doctrine retrieved from the study
conducted by Jack A. Draper.

(Historical context from a research study called ‘The Indonesian Archipelagic State Doctrine
and Law of the Sea: "Territorial Grab" or Justifiable Necessity?’ by Jack A. Draper (1977))

During the Third U.N. Conference on the Law of the Sea meetings in Caracas and Geneva,, the
Indonesian delegation has been proceeding diligently and diplomatically to gain acceptance for an
important exception to the heretofore generally recognized maximum limits of national jurisdic tio n
of coastal states. This exception, which has been called the archipelagic state doctrine, has caused
considerable concern among the major maritime powers as well as Indonesia's immed iate
neighbors in Southeast Asia, due to its possible impact on international navigation, territoria l
claims and rights to exploit the living and non-living resources of the sea.

If one considers that Indonesia stretches for approximately 3,200 miles across one of the most
strategic and resource-rich stretches of ocean in the world, the possible inclusion of the
archipelagic state doctrine in the final result of the U.N. Law of the Sea Conference assumes major
importance. Although several other states, notably the Philippines and Fiji, have an interest in
the acceptance of the doctrine, Indonesia stands to gain by far the largest benefits from its
inclusion in any new convention on the law of the sea. Thus, Indonesia has been the main
proponent and supporter of the archipelagic state doctrine, and it is the Indonesian position to
which we should turn for an analysis of the legal and geopolitical import of the doctrine. The
designation is legally defined by the United Nations Convention on the Law of the Sea (UNCLOS).
In various conferences, The Bahamas, Fiji, Indonesia, Papua New Guinea, and the Philippines are
the five original sovereign states that obtained approval in the UNCLOS signed in Montego
Bay, Jamaica on 10 December 1982 and qualified as the archipelagic states.

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The Archipelagic Doctrine is a specification in the 1987 Philippine Constitution, defining the
boundaries of the country. It stated:

"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... "

This doctrine means, therefore, that the country, with its thousands of islands and many seas,
should be considered as a political unit for reasons of history, law, geography, economics, and
security. Also, when questions involving territorial conflicts arise, the Philippines uses this
doctrine to support its territorial claims.

Basically, because the Philippines is composed of several islands (an archipelago), it states that all
the waters in-between these islands also belong to the Philippines so that the national territory will
be seen as contiguous and with no gaps in-between — at least from an international law standpoint.

The importance of the doctrine is to emphasize the unity of the land and waters by defining an
archipelago as group of islands surrounded by waters or a body of waters studded with islands.
The main purpose of the archipelagic doctrine is to protect the territorial interests of an archipelago,
that is, the territorial integrity of the archipelago.

Being an archipelago, the Philippines offers diverse natural resources, from land to marine to
mineral resources. It is also the biggest producer of copper in Southeast Asia and is among the top
ten producers of gold in the world.

Otherwise, we’d have large bodies of water in-between the islands that can be classified as
international waters and are therefore free for any other countries to claim or use as passage without
encroaching into Philippine territory.

d.) Contiguous zone – Beyond the 12 nautical mile limit there was a further 12 nautical
miles or 24 nautical miles from the territorial sea baselines limit, the contiguous zone, in which a
state could continue to enforce laws regarding activities such as smuggling or illegal immigratio n.

22
Paragraph 1 (a) and (b) and Paragraph 2, Article 33, Section 4 of the UNCLOS states that:

1. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State
may exercise the control necessary to:

(a) Prevent infringement of its customs, fiscal, immigration or sanitary laws and
regulations within its territory or territorial sea;

(b) Punish infringement of the above laws and regulations committed within its territory
or territorial sea.

2. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which
the breadth of the territorial sea is measured.

e.) Exclusive Economic Zones or EEZs – Extend 200 nautical miles from the baseline.
Within this area, the coastal nation has sole exploitation rights over ALL natural resources. The
EEZs were introduced to halt the increasingly heated clashes over fishing rights, although oil was
also becoming important. The success of an offshore oil platform in the Gulf of Mexico in 1947
was soon repeated elsewhere in the world, and by 1970 it was technically feasible to operate in
waters 4000 meters deep. Foreign nations have the freedom of navigation and overflight, subject
to the regulation of the coastal states. Foreign states may also lay submarine pipes and cables.

Article 56 of the UNCLOS prescribes the following provisions:

1. In the exclusive economic zone, the coastal State has:

(a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the
natural resources, whether living or non-living, of the waters superjacent to the seabed and of the
seabed and its subsoil, and with regard to other activities for the economic exploitation and
exploration of the zone, such as the production of energy from the water, currents and winds;

(b) jurisdiction as provided for in the relevant provisions of this Convention with regard to:

(i) the establishment and use of artificial islands, installations and structures;

23
(ii) marine scientific research;

(iii) the protection and preservation of the marine environment;

(c) other rights and duties provided for in this Convention.

2. In exercising its rights and performing its duties under this Convention in the exclusive
economic zone, the coastal State shall have due regard to the rights and duties of other States and
shall act in a manner compatible with the provisions of this Convention.

3. The rights set out in this article with respect to the seabed and subsoil shall be exercised in
accordance with Part VI.

f.) Continental Shelf – The continental shelf is defined as the natural prolongation of the
land territory to the continental margin’s outer edge, or 200 nautical miles from the coastal state’s
baseline, whichever is greater. State’s continental shelf may exceed 200 nautical miles (which is
the Juridical/Legal type) until the natural prolongation ends, but it may never exceed 350 nautical
miles (Extended type), or 100 nautical miles beyond 2,500 meter isobaths, which is a line
connecting the depth of 2,500 meters. Coastal states have the right to harvest MINERAL and
NON-LIVING material in the subsoil of its continental shelf, to the exclusion of others.

The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring
it and exploiting its natural resources. (Article 77 of the UNCLOS)

g.) Aerial Domain (Philippine National Airspace & The Outer Space Treaty) – One of the
domain of territory is the aerial domain. It includes the air directly above the state’s terrestrial and
fluvial domains, all the way up to where the outer space begins.

The International Convention on Civil Aviation holds that EVERY state has complete and exclusive
sovereignty over the airspace above its territory. It also regulates flight of civil aircraft over the
territory of another state except by special agreement or otherwise, and in accordance with the
terms thereof.

24
Article 1 of the ICCA states that “The contracting States recognize that every State has a complete
and exclusive sovereignty over the airspace above its territory.”

Paragraph (a), (b), and (c) Article 3 of the ICCA strictly prohibits any type of state aircraft to fly
over the territory of another state without authorization by special agreement or otherwise, and in
accordance with the terms thereof. Only civil aircraft is applicable with the by-laws of the ICCA.

With the development of modern air navigation, it has been suggested as a better rule to allow
innocent passage to a certain height in order to provide freedom of transportation.

DOES THE PHILIPPINES HAVE A LEGAL RIGHT TO EXPLORE AND EXPLOIT ANY
RESOURCES IN THE OUTER SPACE?

The Outer Space Treaty is an international multilateral agreement that sets forth the fundame nta l
principles governing the international law of outer space. Over eighty (80) states are parties to the
Outer Space Treaty. It provides that outer space (including the moon and other celestial bodies, is
FREE for exploitation and use by ALL states and cannot be claimed by any state.)

The Philippine Space Agency (PhilSA) is the national space agency of the Philippines.

The unified space agency is defined by the Philippine Space Act (Republic Act No. 11363) which
was signed into law on August 8, 2019, by President Rodrigo Duterte,[3] intended to manage and
operate the decentralized space program of the Philippine government, which was handled by
various agencies of the Department of Science and Technology (DOST).

According to the Department of Science and Technology, the Philippines already possesses
enough infrastructure to run a dedicated space agency. Since 2010, it has spent ₱7.48 billion (or
$144 million) for space research and development, aided 5,500 scholars, trained more than 1,000
space science experts, and established 25 facilities in various parts of the Philippines. It has also
developed six small-scale satellites (Diwata-1, Diwata-2, Maya-1, Maya-2, Maya-3, and Maya-
4[30]) and had them launched and deployed to space. [31][32] While the immediate goals of the agency
will not involve launching its own rockets like NASA and JAXA, it is planned that the agency
would pursue such goals in the long term. [32]

25
 ISSUES PERTAINING TO NATIONAL TERRITORY

China’s dispute with the Philippines over the Nansha Islands, Wu Shicun, in Solving Disputes for Regional
Cooperation and Development in the South China Sea , 2013

The Philippines’ official claims and related legal documents

The Philippines claims most of the Nansha Islands (Spratlys), but not Nanwei (Spratly) Island itself or several others
in that immediate vicinity (Smith, 2010: 227).

The Philippines first clarified its national territory through the 1935 Constitution of the Republic of the Philippines,
which provides that:

The Philippines comprises all the territory ceded to the United States by the Treaty of Paris concluded between the
United States and Spain on the tenth day of December, eighteen hundred and ninety -eight, the limits which are set
forth in Article I of said treaty, together with all the islands embraced in the treaty concluded at Washington between
the United States and Spain on the seventh day of November, nineteen hundred, and the treaty concluded between the
United States and Great Britain on the s econd day of January, nineteen hundred and thirty, and all territory over which
the present Government of the Philippines Islands exercises jurisdiction. (Congress of the Philippines, 1935)

On the issue of maritime boundary, the Philippines is one of the earliest Asian countries to propose extending its
maritime jurisdiction beyond its territorial sea. Several national laws were enacted to clarify the boundaries of its
territorial sea and claim rights over its archipelagic waters, continental shelf and EEZ.

On 18 June 1949 the Philippines issued Republic Act No. 387, otherwise known as the Petroleum Act of 1949, Article
3 of which provides that:

All natural deposits or occurrences of petroleum or natural gas in public and/or private lands in the Philippines,
whether found in, on or under the surface of dry lands, creeks, rivers, lakes, or other submerged lands within
the territorial waters or on the continental shelf, or its analogue in an archipelago, seaward from the shores of the
Philippines which are not within the territories of other countries, belong to the State, inalienably and imprescriptibly .
(Congress of the Philippines, 1949)

26
Republic Act No. 3046, issued on 17 June 1961, defines the baselines of its territorial sea (Congress of the Philippines,
1961). This was amended by Republic Act No. 5446 on 18 September 1968, which formally publicised the baselines
of the Philippine territorial sea and the coordinates of base points (Congress of the Philippines, 1968). According to
these two acts, the baselines of the territorial sea are defined by 81 base points and the lines connecting them; all the
waters beyond the outermost islands of the archipelago but within the boundaries set forth in the treaties mentioned in
Article 1 of the 1935 Constitution of the Republic of the Philippines comprise the territorial sea of the Philippines.

On 20 March 1968 the Philippines issued Presidential Proclamation No. 370, which clarified its continental shelf limit
and declared its jurisdiction over the extended area. According to the document, the continental shelf under Philippine
jurisdiction extended to ‘where the depth of the superjacent waters admits of the exploitation of such resources’
(Marcos, 1968).

To support its attempt to extend its jurisdiction over maritime areas, the Philippines relied on its interpretation of
international law. The current Constitution of the Republic of the Philippines, which was amended in 1978, has deleted
expressions referring to historical treaties and instead refers to its archipelago status, providing that:

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. (Congress of the Philippines, 1978)

On 11 June 1978 the Philippines issued Presidential Decree No. 1596, proclaiming that the majority of the Spratly
Islands belong to the Philippine Kalayaan Islands group, and declaring that it enjoys sovereignty over them. It cited
reasons to support this claim:

…much of the above area is part of the continental margin of the Philippine archipelago;

…these areas do not legally belong to any state or nation but, by reason of history, indispensable need and effective
occupation and control established in accordance with international law, such areas must now be deemed to belong
and be subject to the sovereignty of the Philippines;

while other states have laid claims to some of these areas, their claims have lapsed by abandonment and cannot prevail
over that of the Philippines on legal, historical, and equitable grounds. (Marcos, 1978)

On the same day the Philippines issued Presidential Decree No. 1599 to claim a 200 nm EEZ, and reaffirmed its claims
to territorial sea and continental shelf (Official Gazette, 1978).

On 8 December 1982 the Philippines signed UNCLOS, and ratified it on 8 May 1984, making it one of the earliest
member states of the convention (UN Division for Ocean Affairs and the Law of the Sea, 2011).

On 10 March 2009 the Philippines enacted Republic Act No. 9522, a new law adjusting its archipelagic baselines
defined and described by 101 base points. Article 2 provides that the Philippines exercises ‘sovereignty and

27
jurisdiction’ over the Kalayaan Islands group and Scarborough Shoal (Huangyan Island), both of which were
determined as ‘regimes of islands’ (Congress of the Philippines, 2009).

On 8 April 2009 the Philippines submitted ‘A partial submission of data and information on the outer limits of the
continental shelf of the Republic of the Philippines’ to the UN Commission on the Limits of the Continental Shelf,
establishing the outer limits of its shelf in the Benham Rise region east of the Philippine islands. No limits were put
forward for its SCS continental shelf (Smith, 2010: 223). The document specified that ‘this partial submission is
without prejudice to the right of the Philippines to make other submissions for other areas at a future time’ (Philippines ,
2009b).

Excerpt for the Philippines v. China dispute on Scarborough Shoal and the KIG

THE TERRITORY OF SABAH: The Republic of the Philippines v. Malaysia

INTRODUCTION

The North Borneo dispute, also known as the Sabah dispute, is the territoria l
dispute between Malaysia and the Philippines over much of the eastern part of the state of Sabah.
Sabah was previously known as North Borneo prior to the formation of the Malaysian federation.

The thorny issue of Sabah in terms of its diplomatic and political significance between the
Philippines and Malaysia has been dealt with in a number of legal and historical articles, books
and monographs. Although some books partly discuss Sabah, they provide relevant and interesting
information about its other unknown but crucial aspects.

In a peaceful settlement of international territorial and maritime disputes between states, parties
involved have a lot of options including negotiation, inquiry, mediation, conciliation, arbitration,
judicial settlement or other peaceful means depending on the dispute. The Philippine-Mala ys ia
dispute over Sabah was, and still is, a contentious diplomatic issue.

HISTORICAL BACKGROUND

From a historical perspective, it is undisputed that the Sultan of Sulu was the sovereign
ruler of North Borneo which was ceded to him by the Sultan of Brunei in 1704. Such sovereignty

28
was recognized by Great Britain, Spain, and the United States (US) in treaties which they entered
into with the Sultan of Sulu at various times in the 19th century. However, before 1675, Sabah
belonged to the Sultanate of Brunei and as such, Sabah was crucial in the historical and politica l
development of Brunei as a sultanate.

The Sultan of Sulu relinquished the sovereign rights over all his possessions in favour of Spain,
based on the "Bases of Peace and Capitulation" signed by the Sultan of Sulu and the crown of
Spain in Jolo on 22 July 1878. The Sultan declared beyond discussion the sovereignty of Spain
over all the Archipelago of Sulu and the dependencies thereof.

As a dependency of the Sulu Sultanate before and after the Deed of 1878, Sabah was an integra l
part of Sulu territory. Although the British North Borneo Company assumed the territorial rights
over Sabah from 1878 to 1946, which period was interrupted only by the outbreak of World War
II, still Sabah’s historical development before and after 1878 should be situated in the context of
Sulu’s history.

In 1885, Great Britain, Germany and Spain signed the Madrid Protocol to cement Spanish
influence over the islands of the Philippines. In the same agreement, Spain relinquished all claims
to North Borneo which had belonged to the Sultanate in the past in favour of Great Britain.

Article III of the Madrid Protocol of 1885 states that:

“The Spanish Government renounces, as far as regards the British Government, all claims of
sovereignty over the territories of the continent of Borneo, which belong, or which have belonged
in the past to the Sultan of Sulu (Jolo), and which comprise the neighbouring islands of
Balambangan, Banguey, and Malawali, as well as all those comprised within a zone of three
maritime leagues from the coast, and which form part of the territories administered by the
Company styled the "British North Borneo Company".

On 22 April 1903, the successor of Sultan Jamalul Alam, Sultan Jamalul Kiram II, signed a
document known as "Confirmation of cession of certain islands", under which he grant and ceded
additional islands, in addition to the land agreed upon in 1878, in the vicinity of the mainland of
North Borneo from Banggi Island to Sibuku Bay to British North Borneo Company.

29
In 1939, propriety claimants Dayang Dayang Hadji Piandao and eight other heirs filed a civil suit
regarding the "cession money" payable to the heirs of Sultan of Sulu—the then incumbent Jamalul
Kiram II having died childless in June 1936. Chief Justice Charles Frederick Cunningha m
Macaskie of the High Court of North Borneo ruled on the share entitlement of each claimant.

Later on, the British North Borneo Chartered Company surrendered its duties and North Borneo
became a British crown colony on 10 July, 1946, six days after the Philippine Independence from
the Americans.

In September 1946, F. B. Harrison, former American Governor-General of the Philippines, urged

the Philippine Government to protest this proclamation. America posited the claim on the premise
that Spain had never acquired sovereignty over North Borneo, and thus did not have the right to
transfer claims of sovereignty over North Borneo to the United Kingdom in the Madrid Protocol
of 1885. This argument however, contradicts the treaty made between Spain and the Sultanate of
Sulu in 1878, which expressly states that all of the territory of the Sultanate of Sulu is relinquished
to Spain.

In 1950, after a careful study of the Philippine claim, Diosdado Macapagal, then a congressman
together with other colleagues filed a resolution for the pursuance of the claim by the governme nt.

The first official attempt by the Philippines to claim Sabah was on 22 June, 1962, when the
Philippines filed a claim over Sabah against the United Kingdom (UK), which has possession of
the territory at that time. By virtue of the Ramos Resolution in 1962, which urged President
Diosdado Macapagal to execute measures in pursuit of the claim to Sabah. This initiated a series
of diplomatic engagements between the Governments of the Philippines and the United Kingdom.

The result of these exchanges of notes between the Philippines and the United Kingdom through
their respective diplomatic officials was the meeting held in London from January 28, 1963 to
February 1, 1963. The Philippine delegation, composed of Ambassador Salvador P. Lopez as vice-
chairman, Defense Secretary Macario Peralta Jr., Justice Secretary Juan R. Liwag, Senator Raul
S. Manglapus, Congressmen Godofredo P. Ramos and Jovito R. Salonga and Ambassador Eduardo
Quintero, was led by Vice President Emmanuel Pelaez as chairman. In this meeting, the Philipp ine
panel outlined the historical and legal foundation of the Philippine claim vis-à-vis the arguments

30
presented by the British delegation. The Philippines was explaining the history and legal basis of
its claim over Sabah and the origins of the dispute to the UK government. The UK is party to the
dispute because it was responsible for handing Sabah/North Borneo to Malaysia.

On September 16, 1963, instead of the scheduled August 31, 1963, after the conduct and results
of the United Nations Malaysia Mission were known, the Federation of Malaysia was established.
Macapagal, with expressed reservation on the result of the UN Mission, refused to recognize the
government of Malaysia in the belief that it would prejudice the Philippine claim to North Borneo
and recalled the Philippine Ambassador in Kuala Lumpur. The Philippines broke off diplomatic
relations with Malaysia after the federation was formed with Sabah in 1963, but probably resumed
relations unofficially through the Manila Accord, in which the Philippines made it clear that its
position on the inclusion of North Borneo in the Federation of Malaysia was subject to the final
outcome of the Philippine claim to North Borneo. The representatives of Indonesia and the
Federation of Malaya seconded that the inclusion of North Borneo into the aforementio ned
Federation "would not prejudice either the claim or any right thereunder". Only in August 1964
were the consular relations between the two countries reestablished after Macapagal met the
Tungku in Phnom Penh.

COBBOLD COMMISSION

The Cobbold Commission, was a Commission of Enquiry set up to determine whether the people
of North Borneo (now Sabah) and Sarawak supported the proposal to create the Federation
of Malaysia consisting of Malaya, Brunei, Singapore, North Borneo, and Sarawak. It was also
responsible for the subsequent drafting of the Constitution of Malaysia prior to the formation of
Malaysia on 16 September 1963. The Commission was headed by former Bank of
England governor, Lord Cobbold.

It was revealed later in 1968 that President Ferdinand Marcos was training a team of milita nts
on Corregidor known as Operation Merdeka for infiltration into Sabah. The plan failed as a result
of the Jabidah massacre.

31
The Jabidah massacre on March 18, 1968, was the alleged killing of Moro army recruits
who mutinied allegedly upon learning the purpose of their training. It is acknowledged as a major
flashpoint that ignited the Moro insurgency in the Philippines.

It is sometimes also known as the Corregidor massacre, because the alleged killing took place
on Corregidor Island in the Philippines.

Only later would the Marcos administration face the critical point of the Philippine claim and the
possible breakdown of Philippine-Malaysia relations when the Jabidah massacre controversy in
March 1968 was exposed. Moros had been recruited for a plan to stage a rebellion and eventual
occupation of Sabah under the codename Project Merdeka. This led to the Bangkok Talks from
June 17 – July 15, 1968 between the representatives of the Philippines and Malaysia, in an effort
to settle the dispute. However, the talks ended in failure and further worsened the diplomatic
relations between the two countries.

In September 1968, the Philippine Congress passed a law known as Republic Act No. 5446, which
categorically stated that “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” (Noble, 1977, p. 181). In November of
the same year, diplomatic ties between the two countries were severed. Only a year later in
December did the Philippines and Malaysia resume diplomatic relations.

At the ASEAN Summit on 4 August 1977, Philippine President Ferdinand Marcos announced that
the Philippines would take "definite steps to eliminate one of the burdens of Association of
Southeast Asian Nations (ASEAN) — the claim of the Philippine Republic to Sabah".The
statement, however was not followed through, despite negotiations and reassurances made by
Marcos again in 1984 with Malaysian Prime Minister Mahathir Mohamad.

32
Following the overthrow of Marcos, President Corazon Aquino sought to officially drop the claim
before the 1987 ASEAN Summit. A bill to repeal Republic Act 5446 was filed by Leticia Ramos
Shahani in the Philippine Senate in 1987. The bill was widely criticized for effectively dropping
the country’s claim over the territory. Muslim members of Congress also voiced their strong
opposition to the measure for fears it would “endanger” the proprietary rights of the Sultanate of
Sulu. This eventually led Shahani to not pursue the bill’s passage.

While Aquino’s successor Fidel V. Ramos was similarly unable to obtain consensus to drop the
claim, he officially put the dispute aside in order to improve ties with Malaysia. Later,
President Gloria Macapagal Arroyo was similarly unable to gain consensus on the matter. The
2009 Philippine baseline law does not include Sabah within Philippine territory, although the
Philippine Government at the time stated that this did not affect the claim.

CLAIMS OF BOTH SIDES

Malaysian Position - Malaysia stands firm on the findings of the “Cobbold Commission,” which
accordingly expressed the conviction that "the people of Sabah have chosen their destiny and
affinity to be part of Malaysia over the Philippines.”

However, the Philippines on the other hand, since the time it concertedly pursued its claims on
Sabah, has long dismissed the idea that its sovereign claim to Sabah is irrelevant after the United
Nations’ (UN) findings based on the Cobbold Commission.

Philippine Position - The Philippines contends that it has a strong historical and legal claim to
North Borneo or Sabah.

From a historical perspective, it is undisputed that the Sultan of Sulu was the sovereign ruler of
North Borneo which was ceded to him by the Sultan of Brunei in 1704. Such sovereignty was
recognized by Great Britain, Spain, and the United States (US) in treaties which they entered into
with the Sultan of Sulu at various times in the 19th century.

For instance, during the Spanish occupation of the Philippines, the Spaniards never deprived the
Sultan of Sulu of his sovereignty over North Borneo, in the same manner, that during the American

33
colonisation of the Philippines, the Americans did not deprive the Sultan of Sulu as well of his
sovereignty over the disputed territory.

Likewise, the agreement which the Sultan of Sulu entered into with Baron von Overbeck and
Alfred Dent regarding concessions in his North Borneo territory was a permanent lease and not a
“cession” piece of document. But the British claim otherwise. Nevertheless, the Philipp ines
maintains that the said agreement merely extended power over the British North Borneo Company
to administer the disputed territory through the delegated powers of the Sultan of Sulu, and thus
the sovereignty over North Borneo remained vested with the Sultan of Sulu.

Whereas, the legal basis of the Philippines’ claim rests on three arguments. First, the cession of
1704 by the Sultan of Brunei to the Sultan of Sulu of the territory of North Borneo in gratitude for
the latter's help in quelling a rebellion vested sovereign rights to the Sultan of Sulu over the
territory. This is a historical fact.

Second, the lease of 1878 executed by the Sultan of Sulu on 22 January, 1878, in favour of Baron
von Overbeck and Alfred Dent was a contract of permanent lease and not a contract of cession as
alleged by the British. It could not be otherwise since Overbeck and Dent acted as private
individuals. This is supported by the fact that there was a continued payment of annual rentals to
the heirs of the Sultan of Sulu by the North Borneo Company until recently. (Please see the 1878
Madrid Protocol)

And thirdly, that the interpretations of the rules of international law regarding a territorial lease
strongly support the Philippine claim that sovereign rights could not have been acquired by
Overbeck and Dent to the territory of North Borneo. This is because, in international law, a lease
agreement between states does not constitute a transfer of sovereignty and there cannot be a
transfer of sovereignty to individuals.

Moreover, to determine whether the historical and legal basis of the Philippines’ claim to Sabah
are indeed legally strong and meritorious vis-à-vis the claims of Malaysia remains to be seen until
the Sabah issue is referred to an international body like the ICJ.

34
To reiterate, the proposal of the Philippines to submit the territorial dispute over Sabah to the ICJ
was rejected not only by Malaysia but even Great Britain as well.

CONCLUSION

Indeed, the Sabah Dispute between the Philippines and Malaysia remains unresolved until today
fundamentally because of the contending claims on the 1878 Treaty between the Sultanate of Sulu
and the British North Borneo Company or the British government for that matter.

There is no clarity or resolution till this day if indeed Sabah was ceded to the British or not by the
Sultan of Sulu, or if it was only leased to them.

One thing is certain. Sabah was ceded to Malaysia together with Sarawak and Singapore by Great
Britain to form the Federation of Malaysia in 1963.

Thus, the Sabah conflict will continue to be a thorn in the side of bilateral relations between
Malaysia and the Philippines until it is eventually resolved. As to when it will finally be settled is
yet to be ascertained. Hence, the issue remains undetermined as it has been for so many years.

35
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The silent constitution of territory by Oran Doyle, International Journal of Constitutional Law,
Volume 16, Issue 3, July 2018, Pages 887–903, https://doi.org/10.1093/icon/moy070

L. Bautista, 'The Philippine Treaty Limits and Territorial Water Claim in International Law'
(2009) 5 (1/2) Social Science Diliman 107-127.
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Fernandez, E. S. (2007). Philippine-Malaysia dispute over Sabah: a bibliographic survey. Asia-
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https://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.729.1375&rep=rep1&type=pdf

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