STAGES IN THE DEROGATION OF

PHILIPPINE TERRITORY

by Merlin M. Magallona ∗

I. Stage One: How the Revolution Lost Philippine Territory

At the time that the United States began the occupation of

Philippine territory by establishing its military government, the

Filipino revolutionary forces had already liberated the greater part of

the archipelago from the Spanish forces. Recorded in the military

history of the United States is the memorandum of April 27, 1898 in

which General Francis V. Greene of the U.S. expeditionary forces

wrote: “The Spanish power is dead, beyond the possibility of

resurrection. Spain would be unable to govern these islands if we

surrender them.”1

But the final victory of the Philippine Revolution over Spain

was yet to be accomplished, as Intramuros, the walled capital city of

the Spanish colonial government was under siege by more than

10,000 Filipino troops but were shut off by the U.S. forces from

participation in its seizure.

∗
Professorial Lecturer, University of the Philippines College of Law; Chairman, Department of
International and Human Rights Law, Philippine Judicial Academy, Supreme Court of the Philippines;
Member, Panel of Arbitrators, Permanent Court of Arbitration, The Hague, Netherlands.
1
Esteban A. De Ocampo, First Filipino Diplomat, 1944, p. 122, quoting Memorandum from General
Francis V. Greene, April 27, 1898.
1
 Even as the liberation of the Filipino people was at hand over

300 years of Spanish colonialism, Admiral Dewey made a secret deal

with the Spanish Governor-General by which the U.S. forces “would

pretend to attack Manila, the Spanish forces would pretend to

defend, and, after a little noise, the Spaniards would surrender the

capital … The Americans would then claim a glorious victory.”2 In

his own words, Admiral George recalled:

The Governor-General arranged with me that I was to go

up and fire a few shots and then I was to make the signal,
“Do you surrender?” and he would hoist the white flag
and then the troops would march in.3

The French Consul in Manila, G. de Berard, observed in his

letter of August 15, 1898 to his foreign minister in Paris that “This

capitulation after only three quarters of an hour of firing at the

advance posts of the Spaniards leads to the suspicion that everything

was pre-arranged”.4

Apparently, this subterfuge was intended for a swift turnover

of power to the U.S. forces as they succeeded to bar the Filipino

2
James Bradley, The Imperial Cruise: A Secret History of Empire and War, New York: Back Bay Books,
2009, p. 93.
3
As quoted in Bradley, op. cit., p. 93.
4
French Consular Dispatches on the Philippine Revolution, pp. 62-64 (Maria Luisa Camagay trans.,
University of the Philippines Press, 1997).
2
revolutionary forces from any significant role in the capture of the

seat of the Spanish colonial government. To both powers, it was a

strategic importance in legitimizing peace settlement between them

to the exclusion of the Filipino revolutionary forces. As a

consequence, the U.S. forces wiped off the historic role of the

Philippine Revolution in the expulsion and defeat of the Spanish

colonial authority. In a larger frame, it has obliterated a history of

liberation struggle of the Filipino people.

II. Stage Two: The United States Owns Philippine Territory

The Tydings-McDuffie Act, the U.S. Federal Law which

regulates the granting of independence of the Philippines prescribes

that its constitution shall be subject to the approval of the U.S.

President that it conforms to the provisions of the Tydings-McDuffie

Act.5 When U.S. President Truman proclaimed the independence of

the Philippines, it was subject to or “in accord to the reservations

provided for in the applicable statutes of the United States, ….6

5
Tydings-McDuffie Act, sec. 2(a) and (b).
6
60 U.S. Statute 1352 (1946).
3
 The foregoing points show that by its own law the United

States was in the process of disposing its own territory which was

ceded by Spain under the Treaty of Paris. Even following the

proclamation of its independence, the Philippines as a republic

continued to be governed by a constitution promulgated under the

prescriptions of the U.S. federal law; it was a constitution which

served as an extension of the Commonwealth of the Philippines,

which under the Tydings-McDuffie Act was virtually an agency of

the U.S. Federal Government. The Philippine Constitution that was

approved by the U.S. President was the same constitution submitted

to the Filipino people for ratification.

III. Stage Three: Philippine Territory Becomes a U.S. Military

Base

This stage finds continuity with the first in that the Clark Field

base, which was the largest base of the U.S. military forces in the

world during the Cold War, was established in 1902 as an outpost

deep into Luzon for the U.S. military operations against Filipino

revolutionary forces.

4
 In continuity with the authority of the Tydings-McDuffie Act, it

is its mandate under section 2(a), paragraph 12, as follows:

The Philippines recognizes the right of the United

States to expropriate property for public uses, to maintain
military and other reservations and other armed forces in
the Philippines, and, upon order of the President, to call
into the service of such armed forces all military forces
organized by the Philippine Government.

To insure compliance, the Tydings-McDuffie Act requires that the

foregoing obligation be made part of, or included in the ordinance

appended to the Philippine Constitution.7 Hence, the Constitution

took effect as the fundamental law of the Commonwealth of the

Philippines with the foregoing obligation as its First Ordinance.

But the mandate for the Philippines to be the territory of U.S.

military bases is more pervasive and is a continuing phenomenon.

The Philippine Bill of 1902 provides in section 12 that “all the

property and rights which may be acquired in the Philippine islands

by the United States under the treaty of peace with Spain, … except

such land or other property as shall be designated by the President of

7
Sec. 2(a)(12).
5
the United States for military and other reservations of the Government,

are hereby placed under the control of said Islands….”8

Concretizing one of the conditionalities in Truman’s

Proclamation of Independence, the Treaty of General Relations

between the two countries, concluded on the day of independence,

the United States agreed to withdraw and surrender all rights of

possession, control or sovereignty exercised by the United States

over the territory and the people of the Philippine Islands, “except the

use of such bases, and the rights incidents thereto, as the United States of

America by agreement with the Republic of the Philippines ….”9

This agreement was realized in the Military Bases Agreement of

March 14, 1947, Article 1, paragraph 3 of which provides:

The Philippines agrees to enter into negotiations

with the United States, at the latter’s request, to expand
such bases for other bases, to exchange such bases for
other bases, to acquire additional bases, or relinquish
rights to bases, as any of such exigencies may be required
by military necessity.

8
Emphasis added.
9
Article 1, Emphasis added. Full text of the Treaty is in I Philippine Treaty Series 217.
6
The Agreement granted the United States the right to use 23 military

bases located all over the country;10 it “shall remain in force for a

period of ninty-nine-years subject to extension thereafter as agreed by

the two Governments”.11

IV. Stage Four: Philippine Territory as Pawn in the U.S. Cold War
Strategic Plans

As early as 1945, a more general role for the Philippines was

recommended by the U.S. Office of the Strategic Services (OSS), the

precursor of the Central Intelligence Agency (CIA). To strengthen

the position of the U.S. forces in the Pacific, the OSS wanted the

United States to recognize –

The vital importance of the Philippines in

controlling the sea-lanes to the rich resources of the East
Indies is now more obvious than ever. ….[T]he future
relationship of the Islands to the United States should be
reconsidered, and if possible full provision should be
made for adequate American sea and air bases.12

In the same year, the U.S. Joint Chiefs of Staff drew up a top-

secret plan on a more specific role for military bases in the

Philippines. It prescribed: “The United States bases in the

Philippines should be considered, not merely as out-posts but as

10
Article I, paras. 1 and 2. The bases are listed in Annexes A and B of the Agreement.
11
Art. XXIX of the Agreement. The full text of the Agreement is in I Philippine Treaty Series 357.
12
As quoted in S.R. Shalom, The United States and the Philippines: A Study of Neocolonialism, p. 60.
7
springboards from which the United States armed forces may be

projected.”13 A more comprehensive post-war military policy was

approved by the U. S. Joint Chiefs of Staff towards the end of that

year. Entitled “Basis for the Formulation of a U.S. Military Policy”,14

it enumerated a number of “major national policies which

determined our [U.S.] military policy,” among which was the

“Maintenance of an adequate system of overseas bases” as one of the

listed requirements essential to the security of the American people.

Under these premises, the General Military Policy stated:

12. General Military Policy. To be prepared to take

prompt and effective military action wherever
necessary with the armed forces of the United States:
a. To maintain the security of the United
States, its territories, possession, areas,
trust territories and the Philippine Islands.

A top-secret memorandum PPS 23 of February 24, 1948,

prepared by the U.S. Department of State headed by George F.

Kennan, concluded as follows:

c. To share our relationship to the Philippines in such a

way as to permit to the Philippine Government a
continued independence in all internal affairs but to

13
As quoted in Shalom, p. 60.
14
The text is published in T.H. Etzold and J.L. Gaddis, Containment: Documents on American Policy and
Strategy, 1945-1950, New York, 1978, pp. 40-44.
8
 preserve the archipelago as a bulwark of U.S. security in that
area.15

V. Stage Five: Derogation of Philippine Territory by the United

Nations Convention on the Law of the Sea (UNCLOS)

The 1935 Constitution defines National Territory as follows:

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 of
December, eighteen hundred and ninety-eight, the limits
of which are set forth in Article III of the said treaty….16

The vast expanse of water within the limits of the Treaty of

Paris is spelled out by the Committee on National Territory of the

1971 Constitutional Convention in its Report 01, as follows:

Now if we plot on the map the boundaries of this

archipelago as set forth in the Treaty of Paris, a huge or
giant rectangle will emerge, measuring about 6,000 miles
in width and over 12,000 miles in length. Inside this
rectangle are the 7,100 islands comprising the Philippines
Islands. From the east coast of Luzon to the eastern
boundary of this huge rectangle in the Pacific Ocean,
there is a distance of over 150 miles.

That huge rectangle comprises the archipelago’s territorial sea within

the dimension of the State’s sovereignty.

15
16
Emphasis added.
9
 The UNCLOS has derogated Philippine sovereignty by the

elimination of the territorial sea circumscribed by that rectangle all

over the Archipelago, leading to the collapse of territorial

sovereignty, from the political boundaries marked by the

International Treaty Limits to only 12 nautical miles from the

baseline.

The UNCLOS did violence to the Treaty of Paris by removing

the historic and legal rights it granted to the Philippines. In

particular, it deprived the Philippines of its political boundaries, the

only State subjected to such deprivation. In all this, the UNCLOS

violated the definition of National Territory, which represents the

constitutionalization of Article III of the Treaty of Paris.

VI. Stage Six: Derogation of Philippine Territory by the Supreme

Court

In 2011, the Supreme Court decided a case of crucial

importance to the territorial sovereignty of the Philippines. It settled

the issue of constitutionality of the new baseline law in Republic Act

No. 9522.

10
 But in this controversy, this law was under attack as

unconstitutional for the following reasons:

1. It is in derogation of territorial sovereignty as provided

under the Treaty of Paris, which was provided in the 1935

Constitution in defining the national territory.

2. Since the new baseline law was enacted to make the old

baseline law in Republic Act No. 3045 “compliant with the terms of

the United Nations Convention on the Law of the Sea (UNCLOS)”,

the main conflict with the country’s territorial sovereignty lies with

the UNCLOS.

3. The conflict with the UNCLOS comes into bold relief on

consideration of the fact that the old baseline law (Rep. Act No. 3046)

described the national territory as provided in the 1935 Constitution

based on the Treaty of Paris.

As a consequence, the new baseline law re-defines the national

territory according to the demands of the UNCLOS, which the

Supreme Court approved in its decision.

The Supreme Court contends as follows:

UNCLOS III has nothing to do with the acquisition

[or loss] of territory. It is a multilateral treaty, regulating

11
 among others, sea-use rights over maritime zones (i.e., the
territorial waters [12 nautical miles from the baselines],
exclusive economic zone! [200 nautical miles from the
baselines], and continental shelves that UNCLOS III
delimits.

The error of the Decision lies in its own premises as quoted

above. It restricts the coverage of the UNCLOS to waters or what it

refers to as water-use in the maritime zones, apparently to preclude

inquiry into issues of territorial interests, particularly related to

jurisdiction or sovereignty.

However, contrary to the conclusion of the Decision, the water-

use in each maritime zone under the UNCLOS defines the limits of

territorial sovereignty, jurisdiction or sovereign rights, respectively,

of the coastal state. Thus, the outer limit of sovereignty of the coastal

state is measured by the breadth of the 12 nautical miles of waters of

the territorial sea. The breadth of 24 nautical miles of waters of the

contiguous zone serves to measure the jurisdiction of the coastal State

for that maritime zone. As to the waters of the exclusive economic

zone, their breadth of not exceeding 200 nautical miles sets the limits

of the sovereign rights of the coastal State over the living and non-

living resources in those waters.

12
 The Decision approves the derogation of Philippine territory by

upholding the validity of the UNCLOS in replacing the internal

waters of the Philippine archipelago by archipelagic waters.

Article I of the Constitution in defining National Territory

characterizes internal waters as an integral part of the islands of the

archipelago. Hence, the status of sovereignty over the island extends

to the internal waters. The Constitution thus provides: “The national

territory comprises the Philippine archipelago, with all the islands and

waters embraced therein, ….”17

The impact of the derogation of sovereignty brought about by

the application of the UNCLOS comprehends the entire archipelago

considering that, as specified by the same constitutional provision,

“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.”

And yet the Decision is blind to this plain meaning of the

Constitution. It is as well uninformed of the status of internal waters

17
Emphasis added.
13
in public international law, as brought out by well-known publicists,

thus:

1. Rainer Lagoni in Encyclopedia of Public

International Law, explains:

The territory of a State is formed by its land

territory as well as its internal waters. The internal
waters are so closely linked to the land domain that
both are subject to the same legal regime …. This
close relationship is determined by the vital
interests of the territorial sovereign concerning the
conditions of national and territorial integrity, of
defense or of commerce and industry ….18

2. Ian Brownlie, Principles of Public International Law:

It is to be emphasized that for the purposes of

international law the distinction between internal
waters and territorial sea is important, in spite of
the fact that the legal interest of the coastal state
amounts to sovereignty in either case.

Thus no right of innocent passage for foreign

vessels exists in the case of internal waters….19

The status of internal waters under the Constitution, as shown

above, and in public international law correspond to the general rule
for coastal states as provided in Article 2(1) of the UNCLOS, as
follows:

The sovereignty of a coastal State extends beyond its land

territory and internal waters, ….20

18
Vol. II, p. 153.
19
1998 edition, page 118.
20
Emphasis added.
14
 But in derogation of the Constitution is the provision of the

UNCLOS, by which it replaced internal waters with archipelagic

waters for the Philippines as an archipelagic state. The derogation of

sovereignty of the internal waters in all the provisions of the

UNCLOS pertain to the archipelagic waters. These are:

(1) In Article 52(1) “that ships of all States enjoy the right

of innocent passage through archipelagic waters” as a

matter of right;

(2) In Article 53(1), “an archipelagic State may designate

sea lanes and air thereabove suitable for the

continuous and expeditious passage of foreign ships

and aircraft through or over archipelagic waters and

the adjacent territorial sea;

(3) In Article 53(2), “All ships and aircraft enjoy the right

of archipelagic sea lanes passage in such sea lanes and

air routes “and through archipelagic waters; these

will include warships of all types and war planes.

(4) Under Article 53, the UNCLOS allows submarines to

pass submerged without surfacing for identification.

15
 In replacing the Philippine archipelago’s internal waters with

archipelagic waters, the Decision accordingly allows innocent

passage in what the Constitution defines as all waters of sovereignty

“around, between, and connecting the islands of the archipelago

regardless of their breadth and dimensions.”

Since innocent passage through these broad dimensions of

water is an exercise of right, it becomes an international obligation on

the part of the Philippines to grant it; its permission is not required at

all, compared to prior authorization of foreign ships for passage

through internal waters.

The following are the categories of foreign ships that are

entitled to exercise innocent passage in Philippine waters under the

UNCLOS, pursuant to the Decision:

1. Warships, under Articles 29 and 30;

2. Submarines and other underwater vehicles, under

Article 20;

3. Ships carrying nuclear materials or substances, under

Article 22(2);

16
 4. Ships carrying other inherently dangerous or noxious

materials or substances, under Article 22(2);

5. Nuclear-powered ships, under Article 22(2); and

6. Tankers, under Article 22(2).

The Decision makes an exchange of the exclusive

economic zone for the vast rectangular territorial sea, for the

reason that, as it claims, “the reach of the exclusive economic

zone drawn under RA 9522 even extends beyond the waters

covered by the rectangular demarcation [territorial sea] under

the Treaty of Paris.”

The Decision does not seem to realize that here it is

engaged in a bad bargain of exchanging the sovereignty regime

of the territorial sea for the regime of sovereign rights of the

exclusive economic zone. Worse, it is giving up the sovereignty

of the territorial sea over the ocean floor and subsoil, together

with the airspace above it.

17
 In the context of Article 311(2) of the UNCLOS, the Decision

would prove to be the mechanism by which the validity of the

Convention is upheld as against the Treaty of Paris and its

constitutionality. This provision requires that:

This Convention shall not alter the rights and

obligations of the States Parties which arise from other
agreements compatible with this Convention and which do
not affect the enjoyment by the other States Parties of
rights or the performance of their obligations under this
Convention. 21

Under the Decision, it would appear that between the UNCLOS

and the Treaty of Paris, the choice would be against the Treaty of

Paris even as it has been constitutionalized as part of the definition of

national territory.

On this basis the final criterion of judicial review under the

Decision would be the UNCLOS, not the Constitution.

------------------------ 0 ---------------------

21
Emphasis added.
18