Philippine Territory and the UN Convention on the Law of

the Sea
Posted on August 28, 2013 by Atty. Merlin M. Magallona and Celeste Ann Castillo Llaneta in UP Forum

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Former UP College of Law Dean Merlin Magallona (UPSIO Photo)

When President Aquino recently told the press that What is our is ours, referring to Philippine territory, little did he realize that on

account of the UN Convention on the Law of the Sea (UNCLOS), the country has suffered large-scale disasters, beginning with the

fact that the Philippines lost its boundaries as a State, resulting in the loss of vast expanse of its territorial sea, Magallona began

the interview.

He pointed out that the Philippines is about the only State in the world that has permitted its national territory to be revised by a

treaty. The consequence is the worst disaster everthe loss of the countrys sovereign unity of its islands and interconnecting

waters which are now open to the right of innocent passage of all ships of all States without need of express permission from our

government. In other words, these waters have been internationalized under the UNCLOS as archipelagic waters, whereas, these

are categorized under the Constitution as internal waters; where navigation by foreign ships are allowed by express permission.

Magallona posed the problem: Do you know the categories of ships that are given the right to navigate in these archipelagic

waters? Warships, submarines, nuclear-powered ships, and ships loaded with toxic or noxious materials, he said.

He continued: Take note that before the U.S.S.-Guardian and the Chinese fishing boat were grounded in Tubbataha, they already

sailed through the archipelagic waters in the Palawan area, in which they were exercising their right of innocent passage under the

UNCLOS.
Magallona emphasized that the aforementioned features of the UNCLOS are blatant violations of the Constitution.

The countrys boundaries as defined by Article III of the

Treaty of Paris, together with the US-UK 1900 agreement and the US-Spain 1930 corrective treaty, have been expressly

transformed into constitutional definition of national territory by the 1935 Constitution.

Marked off as International Treaty Limits in maps, the same boundaries are not merely imaginary technical lines. They were

provided by the authority of the United States, Federal Government in the Jones Law and in the Tydings-McDuffie Act (the basis of

Philippine independence) as determining in practice the scope of its sovereignty and jurisdiction. Magallona pointed out that by the

authority of the US Government, the Philippine Legislature in the Administrative Code of 1916 provided that the territorial

jurisdiction and extent of powers of the Philippine Government is comprised in the limits defined by the said treaties.

Moreover, according to Magallona, the countrys boundaries as thus determined were communicated formally to the United Nations

Secretary General upon his request in a note verbale of 20 January 1956.

This served as a notice to the international community as to the territorial scope of Philippine sovereignty. Note that this notice

elicited no adverse reaction from any other State. Even during the US sovereignty over the territory within the scope of the Treaty of

Paris, there was no protest from any source against the territorial scope of the countrys sovereign authority.

So Magallona asked: Why eliminate the long-established boundaries? He was referring to his claim that the Treaty of Paris has

ceased to be legal basis of the Philippine territory, which the UNCLOS has replaced in utter disregard of the Constitution.

This was done when the UNCLOS became effective law on the Philippines, following its signature and ratification during the martial

law regime when at the time there was absence of public information and discussion on the consequences of the UNCLOS.

There is reason to believe, Magallona claimed, that the Philippine delegation that signed and ratified the UNCLOS was of the belief

that it was contrary to the Philippine Constitution. This is why, according to Magallona, the delegation filed a formal declaration

stating that the signing of the Conventionshall not in any manner impair or prejudice the sovereign rights of the Republic of the

Philippines under and arising from the Constitution of the Philippines. On this account, the UNCLOS is problematical, he said.

Magallona further explained: Although the entire declaration was objected to by other States parties as a reservation (which

UNCLOS prohibits), the Batasan in its concurrence resolution succeeded in making it an Annex, forming part of its resolution, thus

with the understanding embodied in the Declaration.

Since it can be shown how the UNCLOS violates the Constitution, may the Annex of the Batasan resolution restrict the legality of the

UNCLOS as a treaty in domestic law?

Magallona added that if the Philippines moves to denounce or terminate the UNCLOS, still its main benefits would accrue to the

Philippines as general international law. This pertains, for example, to the exclusive economic zone and the continental shelf.
 Map from A Primer on the Law of the Sea, by Merlin M. Magallona

Magallona is of the view that the enactment of the New Baseline Law in Republic Act No. 9522 dramatizes in one stroke the

reorganization of Philippine territory. When it established the straight archipelagic baselines, the new law formally assumes the

status of an archipelagic state under Part IV of the UNCLOS. Consequently, all waters landward of those baselines are declared

archipelagic waters, obviously at war with the Constitution proclaiming them as internal waters, i.e., waters around, between,

and connecting the islands of the archipelago regardless of their breadth and dimensions.

At the same time, Magallona added, the new law repeals the provisions of the old law defining Philippine territory pursuant to the

Treaty of Paris. He concluded that by means of the new baseline law, the UNCLOS has replaced the Treaty of Paris as the legal

basis of Philippine territory, consigning the latter to the archives of historical memory.
Magallona became emotional in making it clear that under the Vienna Convention on the Law of Treaties, reflecting general

international law, treaties establishing boundaries cannot be subject to fundamental change of circumstances and cannot be

terminated for this reason. He stressed that what has happened is the Philippine Government itself in effect has terminated the

Treaty of Paris by means of fundamental change of circumstances, which is impermissible in international law and in Philippine

legal system.

Prof. Magallona earned his Bachelor of Laws from the UP College of Law. He was UP Law dean in 1995-1999 and director of the

Institute of International Legal Studies, UP Law Center, in 2000-2001. He was foreign affairs undersecretary from 2001 to 2002. He

is currently professorial lecturer at the UP College of Law. Email him at forum@up.edu.ph.