Among the countries of the world, the Philippines is one of the few — perhaps, the only one — that define their national territories in their constitutions. Article I of the 1987 — and current — Philippine Constitution states:
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.
While, unlike its counterpart in the 1935 Constitution, Article I avoids explicitly citing the 1898 Treaty of Paris in which Spain turned over the Philippines to the United States, the 1900 Spain-US treaty or the 1930 convention between Great Britain and the US, some academicians in the Philippines see them as being implied in the phrase “all other territories (land or water) over which the Philippines has sovereignty or jurisdiction”.
Indeed in the conventions writing the 1935, 1973 and 1987 Philippine Constitutions, debates raged on whether to have a definition of the national territory in the Constitution at all. In any case, several pieces of Philippine legislation have defined the waters between the main archipelago and the Treaty of Paris limits as territorial. For example, the 1961 baselines act states that “all the waters beyond the outermost islands of the archipelago but within the limits of the boundaries set forth in the aforementioned treaties (the 1898, 1900 and 1930 agreements concluded by the US) comprise the territorial sea of the Philippines”. It is not clear whether subsequent amendments to the baselines act have changed this rather extravagant claim to territorial sea. The expansive Philippine claims to the waters around several land features in the South China Sea and to a substantial portion of the Malaysian state of Sabah complicate things further.
Meanwhile, in 1982, the Philippines signed the United Nations Convention on the Law of the Sea, albeit with sweeping reservations, which were reiterated upon its ratification by the Philippine government in 1984. The UNCLOS prescribes in detail ways for nations to designate various maritime regimes — internal waters, the territorial sea, the contiguous zone and the exclusive economic zone. It sets limits to claims to the continental shelf and the “extended continental shelf”.
From a certain viewpoint, the requirements of UNCLOS are in conflict with provisions of the Philippine Constitution and several Philippine laws. Attempts have been made to bring those laws in closer alignment with UNCLOS. The most recent of these is the March 2009 legislation adjusting the country’s archipelagic baselines and declaring a regime of islands for the land features that it claims in the South China Sea. Nevertheless, uncertainties and ambiguities remain.
On Monday, Jan. 10, the Carlos P. Romulo Foundation is launching a book on the Philippine national territory that it is co-publishing with the Institute of Southeast Asian Studies in Singapore. I wrote this book entitled “Where in the World is the Philippines? Debating its National Territory”. It seeks to illuminate the facts surrounding the issues outlined above; it does not attempt to take one side or another on them. In a number of cases, resolving these issues can be done by amending the laws, including, perhaps, amending the Philippine Constitution, or successfully negotiating them with other states.
Meanwhile, despite the adjustments in the country’s archipelagic baselines and the declaration of a regime of islands for the claimed land features in the South China Sea, the continuing uncertainty, ambiguity and absence of settlements have real consequences for people’s lives.
The Philippine military and other law-enforcement agencies cannot draw up appropriate rules of engagement for the enforcement of Philippine laws. Thus, laws on fishing, poaching and environmental protection cannot, in some places, be enforced with any degree of certainty. Philippine diplomats cannot negotiate the delimitation of the country’s maritime boundaries with its neighbors with the requisite confidence. The failure to designate archipelagic sea lanes allows foreign vessels, commercial or military, to navigate between Philippine islands with impunity.
Not least, the maintenance of the Philippine claim to a substantial portion of North Borneo impedes negotiating maritime boundaries with Malaysia, as well as Indonesia, prevents the establishment of a Philippine consulate in Sabah, impairs Philippine-Malaysian relations, and keeps the heirs of the Sultan of Sulu and the Sulu community in general from enjoying whatever compensation is being offered by the Malaysian government for their proprietary rights to their claimed legacy in North Borneo.
The advent of a new administration and new leadership in the Philippines could provide an opportunity to bring these issues closer to resolution — for the sake of the country’s and its people’s future.