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Sounding Board
Territorial problems

By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer
First Posted 00:20:00 04/28/2008

Filed Under: Constitution

MANILA, Philippines - Current territorial controversies are a reminder of the fact that territorial delimitation is not just a matter of statutory or even constitutional law. Statutes and constitutions are domestic law and are binding only on the state promulgating them, unless their contents are also supported by international law. For this reason territorial disputes are not settled by a simple act of one state drawing territorial lines to favor itself.

The definition of national territory found in the Constitution went through three phases. The first phase was during the 1934-1935 Constitutional Convention. This was followed by the deliberations of the 1971 Constitutional Convention and finally by the deliberations of the 1986 Constitutional Commission. Between 1972 and 1986, moreover, the Philippines became party to the 1982 Convention on the Law of the Sea. To fully understand current discussions about our national territory, all these phases must be taken into consideration.

The provision on national territory in the 1935 Constitution contained four points of reference for the determination of Philippine territory: (1) The Treaty of Paris of December 10, 1898; (2) the treaty of Washington of November 7, 1900; (3) the treaty between Great Britain and the United States of January 2, 1930; (4) ?all territory over which the present Government of the Philippine Islands exercises jurisdiction.?

By Article III of the Treaty of Paris, Spain ceded to the United States ?the archipelago known as the Philippine Islands, and comprehending the islands lying within? the line drawn by the technical description of the same article. The technical description embodied in the Treaty of Paris, however, left some doubt about the inclusion within the ceded territory of the Batanes Islands to the north and of the Islands of Sibutu and Cagayan de Sulu to the south as well as of the Turtle and Mangsee Islands. The Treaty of Washington of November 7, 1900 corrected the error with respect to the Islands of Sibutu and Cagayan de Sulu, and jurisdiction over the Turtle and Mangsee Islands was clarified by the convention concluded between Great Britain and the United States on January 2, 1930. The doubt with respect to the Batanes Islands, however, was left unclarified in spite of the fact that, from time immemorial, these islands had undisputedly formed part of the Philippine Islands. Hence, the 1935 Constitution added the clause ?all territory over which the present [1935] government of the Philippine Islands exercises jurisdiction.?

The 1971 Convention spent a considerable amount of time on February 14 and 15, 1972 debating whether the new Constitution should contain a definition of Philippine territory.

The principal proponent of the motion to delete the entire article on National Territory was the late Delegate Voltaire Garcia (Rizal). Garcia argued that territorial definition was a subject of international law, not of municipal law, and that Philippine territory was already defined by existing treaties. As for the Batanes Islands, Garcia pointed out that no state ever questioned the continued exercise of Philippine sovereignty over these islands. In addition, other delegates found the mention of the Treaty of Paris a repulsive reminder of the indignity of our colonial past.

Retention of an article on national territory, however, won on the argument that there should be a clear definition of Philippine territory not just in statutes, e.g., in R.A. 3046 (1961) and R.A. 5446 (1968) but in the Constitution itself. But the text that was finally approved omitted mention of the treaties found in the 1935 version. The omission, however, was not meant to be an abandonment of the lines drawn in earlier treaties but was merely meant to be an expression of the desire to erase textual reference to our colonial past.

Beyond the 1935 text, however, the 1973 version inserted provisions on the manner of drawing base lines, territorial and internal waters and archipelagic waters. The insertions antedate the 1982 Convention on the Law of the Sea. When the Philippines eventually signed the 1982 Convention, it made the reservation that signing ?shall not in any manner impair or prejudice the sovereign right of the Philippines under and arising from the Constitution of the Philippines.?

The definition of national territory in the 1987 Constitution essentially follows that of the 1973 Constitution: ?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.?

In our modern world, however, the extent and degree of control over territorial waters, internal waters, air-space, seabed, subsoil, insular shelves and other submarine areas are not determined with finality by a unilateral fiat. Of this the 1971 Convention and the 1986 Constitutional Commission were well aware. Since currently there have arisen disputes about the extent of our territorial domain, there is need for a clarifying review of our territorial claims.



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