Territory

1987 Constitution mandates that the State shall protect the nations
marine wealth in its Exclusive Economic Zone, and reserve its use to
enjoyment exclusively to Filipino citizens.
To fulfill this obligation, the State has filed an arbitration case against
China in accordance with the UNCLOS.
Issue: Whether or not the Philippines will keep or lose 80% of its
exclusive economic zone and 100% of its extended continental shelf in
the West Philippine Sea.
UNCLOS (United Nations Convention of the Laws of the Seas)
-Governs maritime disputes on overlapping maritime zones. However, it
does not govern territorial disputes.
Territorial Sea the belt of the sea located between the coast and
internal waters of the coastal State and the high seas extending to 12
nautical miles from low water mark.
Contiguous Zone extends up to 12 nautical miles from the territorial
sea.
A State exercises sovereignty over its territorial sea subject to the right
of innocent passage. An innocent passage is not prejudicial to the
interests of the coastal State nor contrary to recognized principles of
international law.
A State may designate sea lanes and air routes suitable for the
continuous and expeditious passage of foreign ships and aircraft
through or over its archipelagic waters and the adjacent territorial sea.
Exclusive Economic Zone (EEZ) body of water extending up to 200
nautical miles within which the State may exercise sovereign rights to
explore, exploit, conserve, and manage the nautical resources.
Settlement of disputes as provided by the UNCLOS
The UNCLOS provides for a compulsory dispute settlement mechanism
over maritime disputes among its member states including disputes
involving the interpretation or application of the provisions of UNCLOS.
Modes of acquiring territory
1.) Discovery and Occupation
Q: What can be validly acquired thru discovery and occupation?
A: Lands which are terra nullius or a land belonging to no one.
Doctrine of Effective Occupation
Discovery alone is not enough. Mere discovery gives only an inchoate
right to the discoverer.
For title to finally vest, discovery must be followed by effective
occupation in a reasonable time and attestation of the same. (This is
what President Marcos did to KIG)
2.) Cessation by Treaty
Examples are treaty of Paris, treaty between France and US ceding
Louisiana to the latter and treaty between Russia and US ceding Alaska
to the latter.
3.) Prescription
A concept under the Civil Code. Territory may also be acquired through
continuous and uninterrupted possession over a long period of time.
However, in international law, there is no rule of thumb as to the length
of time for acquisition of territory through prescription. In this
connection, consider the Grotius Doctrine of Immemorial prescription,
which speaks of uninterrupted possession going beyond memory.
4.) Conquest or Subjugation (conquistadores)
This is no longer recognized inasmuch as the UN Charter prohibits
resort to threat or use of force against the territorial integrity or
political independence of any state.
5.) Accretion
Another concept in the Civil Code. It is the increase in the land area of
the State, either through natural means, or artificially, through human
labor.
MARITIME DISPUTES
Kalayaan Island Groups (KIG)
The Kalayaan Island Group (KIG) is a group of over fifty features and
their surrounding waters that belong to the Philippines, located in what
is internationally known as the Spratly Islands. The KIG has been the
subject of the Philippines official and private interests since before it
became an independent republic. The islands, reefs and rocks of the
KIG are nearest the Philippine main archipelago, and are believed to be
both economically valuable and strategically important for purposes of
national security. The KIG was formally incorporated as a municipality
of Palawan province in 1978 during the administration of President
Ferdinand E. Marcos through Presidential Decree No. 1596. Nine (9) of
its islands and reefs presently host Philippine civilians and troops.
Philippine sovereignty over the KIG is contested by some states in the
region.
Bajo de Masinloc
Bajo de Masinloc is a large coral reef which lies off the coast of the
Province of Zambales. It is nearest to the Municipality of Palauig.
Although uninhabited, with only some rocks visible above water, the
shoal has been considered part of the Philippines from Spanish colonial
times. Bajo de Masinloc is an area of fishing, navigation and other
activities by Filipinos as well as other nationalities.

The 1734 Pedro Murillo Velarde map shows the shoal designated as
Panacot (meaning to terrify), while an 1899 Mapa General, Islas
Filipinas by the Observatorio de Manila marks it as Bajo de Masinloc
(Shoal of Masinloc). It is also locally known as Panatag and Karburo. Its
international name Scarborough Shoal came into use after the British
tea trading ship Scarborough was shipwrecked in the area in 1748, as
documented in the journals of the Malaspina Expedition (1789-1794).

In 2009, when the Philippine Legislature passed Republic Act No. 9522,
Bajo de Masinloc and the KIG were explicitly mentioned to be under
Philippine sovereignty and jurisdiction. In 2012, Bajo de Masinloc
became the subject of a heated dispute with China.

Is the Spratlys Group of Islands part of the Philippine Archipelago?
A: No

Spratlys group of Islands a.k.a. "Kalayaan Island Group" is not part of
the Philippine Archipelago because it is too far away from the main
islands of the Philippines. It is found, geographically, almost in the
middle of the South China Sea. Historically, when we talk about the
Philippine Archipelago, we refer to those islands and waters that were
ceded by Spain to the United States by virtue of the Treaty of Paris in
1898, and that did not include the Spratlys Group of Islands yet. under
the treaty, the islands that were ceded by Spain were identified -the
main islands- Luzon, Visayas and Mindanao. Clearly, it did not include
the Spratlys Group of Islands.
Spratlys Group of Islands was only discovered sometime in 1950's by a
Filipino, Tomas Cloma. The latter waived his rights over the Spratlys
Group of Islands, is to have the islands immediately occupied by
Philippine troops. He then issued PD1596, constituting the Spratlys
Group of Islands as a regular municipality claiming it the Municipality of
Kalayaan placing it under the Province of Palawan, and then he had the
elections immediately held in the islands so from that time on until
now, we continue to hold elections there. The Philippine exercises not
only jurisdiction but also sovereignty over the Spratlys Group of Islands,
yet it is not part of the Philippine Archipelago. Geographically, it is too
far away from the Philippine Archipelago.
On May 20, 1980, the Philippines registered its claim with the UN
Secretariat. The Philippine claim to the islands is justified by reason of
history, indispensable need, and effective occupation and control. Thus,
in accordance with international law, the Spratlys Group of Islands is
subject to the sovereignty of the Philippines.
Is the Spratlys group of Islands part of our National Territory?
A: YES
The Spratlys Group of Islands falls under the second phrase of Article 1
of the Philippine Constitution " and all other territories over which the
Philippines has sovereignty or jurisdiction". It is part of our national
territory because the Philippines exercise sovereignty (through the
election of public officials) over Spratlys Group of Islands.
What was the basis of the Philippines' claim over the Spratlys?
A: Through the discovery of Tomas Cloma and by effective occupation
(Magallona v. Ermita, G.R. No. 187167, August 6, 2011) PD1596, June
11, 1978 constituting the Spratly's Group of Islands as a regular
municipality claiming it the Municipality of Kalayaan, placing it under
the Province of Palawan.
HOW FAR ARE THE KALAYAAN ISLANDS AND BAJO DE MASINLOC
FROM THE MAIN PHILIPPINE ARCHIPELAGO?

The distance between Puerto Princesa (Palawans capital) and Pag-asa
Island (the biggest island of KIG municipality) is approximately 280
nautical miles. It takes 1 hour and 30 minutes to reach Pag-asa Island by
C-130 Hercules transport plane from Puerto Princesa, and 32 hours by
motor launch to get there from Ulugan Bay.Bajo de Masinloc, on the
other hand, is only 124 nautical miles away from the main archipelagos
coastline. It takes 12 hours for fishermen from Zambales, Pangasinan
and Bataan to travel to Bajo de Masinloc during the fishing season.


WHAT ARE THE TERRITORIAL DISPUTES IN THE WEST PHILIPPINE SEA
ALL ABOUT?

The disputes over the Kalayaan Island Group involve six parties that lay
claim, for different reasons, to all or part of the South China Sea. These
parties are the Peoples Republic of China, Taiwan, Vietnam, the
Philippines, Malaysia and Brunei Darussalam.

The basic disagreements are about sovereignty or ownership of the
islands, rocks, and reefs in the ocean, including the adjacent waters and
seabed areas. Following the entry into force of the United Nations
Convention on the Law of the Sea (UNCLOS) in 1994, countries also
began to contest each others rights to the 200 nautical mile Exclusive
Economic Zone and to a Continental Shelf, particularly the rights to
explore for, and exploit, fisheries, petroleum, and other marine
resources in these zones.

Military garrisons and other facilities have been set up by various
claimant states to protect their claims. With regard to Bajo de Masinloc,
on the other hand, Philippine sovereignty is being disputed only by
China and Taiwan. China and Taiwan call it Huangyan Island, and claim
sovereignty and historic rights over the shoal. In 2012, China stationed
ships on the shoal and began preventing Filipino fishermen from
regaining access to the shoal and its surrounding waters.

CAN WE BRING THE TERRITORIAL AND MARITIME DISPUTES TO AN
INTERNATIONAL COURT OR TRIBUNAL FOR RESOLUTION?

Yes. Under international law, or the law of nations that governs the
relations between all States, taking any dispute before an international
court is based ultimately upon the consent of States. This consent is
usually expressed in an international agreement, such as a compromis
darbitrage or agreement for arbitration, or a dispute settlement
mechanism in a broader treaty or convention to which the state has
expressly given consent by ratification or accession.

Part XV of the UNCLOS provides for dispute settlement mechanisms in
cases of maritime disputes. These range from bilateral modes such as
fact-finding and negotiations, to those involving third parties like good
offices, conciliation, arbitration and adjudication. By ratifying UNCLOS,
the Philippines, China, and other claimants to various parts of the South
China Sea accepted that these mechanisms should be used to resolve
maritime disputes that may arise between them.

WHAT IS THE SIGNIFICANCE OF THE PHILIPPINE DECISION TO BRING
ITS DISPUTE WITH CHINA BEFORE AN ARBITRAL BODY UNDER
UNCLOS?

The decision to bring the dispute before an arbitral body is quite
significant.

First, normally adjudication is only a last resort, as international
disputes should be resolved primarily by negotiations and most States
would rather not bring their disputes before a third party
settlement mechanism. The decision to initiate arbitral proceedings
indicates that the Philippine government is not optimistic that a
negotiated resolution to the issue is possible under the prevailing
circumstances.

Second, the Philippines attempt to bring China before an arbitral
tribunal demonstrates its confidence in its legal position, and its belief
that Chinas claims based on the nine-dash line will not be recognized
by the international community. The Philippines application directly
challenges the validity of Chinas expansive claims to the South China
Sea, and asks for a declaration of its illegality in light of UNCLOS.
If the arbitration is successful, it may vindicate the Philippines position
that it is entitled to a full 200nm EEZ and continental shelf within the
SCS, and exclusive rights to explore and exploit the resources therein,
despite Chinas claims to sovereignty and jurisdiction within
the area of the nine-dash line.

TERRITORIAL DISPUTE ON SABAH (OUTLINE)
1. From the time it was acquired by the Sultan of Sulu from the Sultan
of Brunei up to 24 April 1962 when it was formally ceded and
transferred to the Republic of the Philippines under the title of
sovereignty, the Sultanate of Sulu had continuously been the rightful
sovereign of the portion North Borneo known as Sabah.
1.1. In the course of internal armed conflict in the Sultanate of Brunei
referred by some historians as civil war, lasting for more than 10
years, the Sultan of Brunei requested the assistance of the Sultan of
Sulu, with the promise that in the event of victory he would grant him
the territories in North Borneo under his dominion. Following the
victory of Sultan Muaddin of Brunei, with the armed intervention of the
Sultan of Sulu, accordingly he ceded Sabah to the Sultan of Sulu in
1704.
1.2. By the Declaration of 24 April 1962 issued by the Heirs of the Sultan
of Sulu, the territory of Sabah as thus required by cession from the
Sultan of Brunei was ceded and transferred in sovereignty to the
Republic of the Philippines. The Declaration was entitled Recognition
and Authority in Favour of the Republic of the Philippines.
1.2.1. By this Declaration, the Philippine claim to sovereignty and
dominion over a portion of North Borneo became a legal claim. After
the cession from the Sultanate, the Philippines acquired the rights over
the territory of North Borneo which it was duty-bound as a sovereign to
protect and preserve.
1.3. This Declaration followed the petition of 5 February 1962 of the
Heirs of the Sultan of Sulu addressed to the Department of Foreign
Affairs. In this Petition the Heirs expressed their intention to have the
portion of North Borneo included in the national territory of the
Philippines.
1.3.1. By the Instrument of 12 September 1962, the Republic of the
Philippines accepted the cession of sovereignty over Sabah proclaimed
by the Sultanate of Sabah.
1.3.2. On 24 April 1962, congress adopted Resolution urging the
President of the Philippines to take the necessary steps for the recovery
of a certain portion of the Island of Borneo and adjacent islands which
belong to the Philippines.
1.3.3. On the basis of the Declaration of 24 April 1962 of the Heirs of
the Sultan of Sulu on the transfer of sovereignty over Sabah, Congress
enacted Republic Act No. 5446 amending the Baseline Law in Republic
Act No. 3046, the amendment providing that the Philippines has
acquired dominion and sovereignty over Sabah situated in North
Borneo.
2. Malaysias claim to sovereignty over Sabah was based on its inclusion
in the formation of the Federation of Malaysia. It is a claim of derivative
title, based on:

(a) whatever interests the British Government had in Sabah, which
were derived from
(b) whatever interests the British North Borneo Company (BNBC) had in
Sabah, which were derived from whatever interests Overbeck and Dent
derived from their 1878 agreement with the Sultan of Sulu.
2.1. Sufficient evidence has been shown on the side of the Sultan of
Sulu that the Deed of 22 January 1878 executed by Sultan Mohammed
Jamadul Alam with Gustavus Baron de Overbeck and Alfred Dent was
an agreement of lease. In consideration of this (territorial)
lease[they] promise to pay His Highnessand to his heirs and
successors the sum of five thousand dollars annually to be paid each
and every year.
2.1.1. Written in Arabic, the agreement had been authoritatively
translated by an American and by a Dutch scholar as lease. In the
Spanish translation, the agreement has been described as an
arrendamento which means lease.
2.1.2. In a speech before the House of Commons, the British Prime
Minister himself, William Gladstone, made reference to the Deed of
1878 as a contract of lease: We do not see how this Protectorate
Agreement [of 1888], viewed in the light of the 1878 contract, can
possibly divest the Sultanate of Sulu of the latters sovereignty or
dominion. On the contrary, after 1888, the British North Borneo
Company entered into a Confirmatory Deed with the Sultan of Sulu,
thereby confirming and ratifying what was done in 1878. And we hold
the view that far from repudiating the lease contract of 1878, the
British North Borneo Company, said to be under British protection,
confirmed British protection, confirmed and reiterated in 1903 the
existence of lease relationship.
2.1.3. Overbeck and Dent as private individuals have no legal status in
international law to assume the power of sovereignty involved in the
cession of territory.
2.1.4. Overbeck and Dent therefore had nothing to transfer in terms of
title to sovereignty over Sabah to the British North Borneo Company
(BNBC).
2.1.5. By Proclamation of 25 November 1957, the Sultan of Sulu
declared The termination of the said lease in favour of Gustavus Baron
de Overbeck and Alfred Dent, their heirs and assignees, effective the
22nd day of January 1958, and that from and after that date all the
lands covered by the said lease shall be deemed restituted to the
Sultanate of Sulu.
2.2. When the British Government granted a royal charter to the BNBC,
did it provide authority for the BNBC to acquire territory by title of
sovereignty?
2.2.1. Lord Earl Granville, British foreign minister, in his letter of 7
January 1882 to British Minister Morier: The British Charter therefore
differs essentially from the previous Charters granted by the Crown to
the East India Company, the Hudsons Bay Company, in the fact that
the Crown in the present case assumes no dominion or sovereignty
over the territories occupied by the Company, nor does it purport to
grant to the Company any powers of Government thereover; it merely
confers upon the persons associated the status and incidents of a body
corporate, and recognizes the grants of territory and the powers of
government made and delegated by the Sultan to whom the
sovereignty remains vested.
2.2.2. In response to the protest of Spain and the Netherlands in regard
to the grant of BNBC Charter in North Borneo, Glanville replied: The
territories ceded to Mr. Dent will be administered by the Company
under the suzerainty of the Sultans of Brunei and Sulu, to whom they
have agreed to pay a yearly tribute. The British government assumes no
sovereign rights whatever in Borneo.
2.2.3. In making assurances to the Dutch Minister Count de Bylant,
Glanville stressed that BNBC was purely a private commercial
enterprise, declaring: The Majestys Government have already
explained to the Government of the Netherlands that the grant of the
Charter did not in any way imply the assumption of sovereign rights in
North Borneo. It is therefore unnecessary to pursue this discussion
further.
2.2.4. Reinforcing Glanvilles position, Julian Pauncefote, assistant
permanent undersecretary of the British Foreign Office, declared: We
must be carefulto preserve the Sultans status as a Sovereign to the
east coast of Borneo. Further he said: The sovereignty of North
Borneo is vested in the Sultan of Sulu; any stipulation Britain might
make respecting that territory must have the previous assent of the
Sultan signified by him through the Company.
3. However, in derogation of the foregoing commitment and
declarations, on 26 June 1946 the British Government entered into an
agreement with the British North Borneo Company (BNBC) whereby
The companytransfers and cedes the Borneo Sovereign Rights to the
Crown with effect from the day of transfer, to the intent that the Crown
shall, as from the day of the transfer, have full sovereign rights over,
and title to, the territory of the State of North Borneo and that the said
territory shall thereupon become part of His Majestys dominions. The
agreement was entitled Agreement for the Transfer of the Borneo
Sovereign Rights and Assets from the British North Borneo Company to
the Crown, 26th June 1946.
3.1.Taking into account the said Agreement of 26 June 1946, the British
Crown upon the advice of his Privy Council ordered as follows:
1. This Order may be cited as the North Borneo Cession Order in
Council, 1946, and shall come into operation on the fifteenth of July
1946.
2. As from the fifteenth day of July, 1946, the State of North Borneo
shall be annexed to and shall form part of His Majestys dominions and
shall be called, together with the Settlement of Labuan and its
dependencies, the Colony of North Borneo.
3.2. The colonization of North Borneo by the British Crown by means of
Cession Order of 1946 appears to cede and transfer all the rights,
powers and interests of BNBC in North Borneo which the British
Government itself openly acknowledged as excluding the power of
sovereignty and that territorial sovereignty remained with the Sultan of
Sulu.
3.3. Hence, the legality of British annexation of North Borneo, including
Sabah, persists as a fundamental issue in the Philippine claim to Sabah.
3.3.1. Former American Governor-General in the Philippines, Francis
Burton Harrison, described the annexation as political aggression and
urged the Philippine Government to take action.
4. When Sabah was incorporated into the formation of the Federation
of Malaysia, the illegality of annexing Sabah as a Crown Colony remains
in Malaysias succession-in-interest from Great Britain.
4.1. Through the Government of Malaya, the British Government
announced that its territories in North Borneo, including Sabah, would
form part of a new Federation of Malaysia.
4.2. The Philippines protested the British decision and called Britains
attention to the sovereign rights of the Philippines over Sabah. After
protracted negotiations, the British Government agreed to meet
Philippine representatives to discuss the problem of North Borneo.
Held in London in 1963, the negotiations proved to be inconclusive. In
the meantime, the founding date of the new Federation was
announced.
5. On the initiative of President Diosdado Macapagal, a Summit
conference was convened in Manila from July 30 to August 5, 1963. In
this conference, on 31 July 1963, President Soekarno of Indonesia,
President Diosdado Macapagal and Prime Minister Tunku Abdul
Rahman of the Federation of Malaysia approved and accepted the
Manila Accord, paragraph 12 of which stipulates as follows:
The Philippines made it clear that its position on the inclusion of North
Borneo in the Federation of Malaysia is subject to the final outcome of
the Philippine claim to Borneo. The Ministers took note of the
Philippine claim and the right of the Philippines to continue to pursue it
in accordance with international law and the principle of the pacific
settlement of disputes. They agreed that the inclusion of North Borneo
in the Federation of Malaysia would not prejudice either the claim or
any right thereunder. Moreover, in the context of their close
association, the three countries agreed to exert the best endeavors to
bring the claim to a just and expeditious solution by peaceful meansof
the parties own choice, in conformity with the Charter of the United
Nations and the Bandung Declaration.
5.1 In the same Summit Conference, the three Heads of Government
signed a Joint Statement on 5 August 1963, paragraph 8 of which reads:
In accordance with paragraph 12 of the Manila Accord, the three
Heads of Government decided to request the British Government to
agree to seek a just and expeditious solution to the dispute between
the British Government and the Philippine Government concerning
Sabah (North Borneo)The three Heads of Government take
cognizance of the position regarding the Philippine claim to Sabah
(North Borneo) after the establishment of the Federation of Malaysia as
provided under paragraph 12 of the Manila Accord, that is, that the
inclusion of Sabah (North Borneo) in the Federation of Malaysia does
not prejudice the claim or any right thereunder.
6. Malaysia had repeatedly acknowledged the Philippine claim to Sabah
and that it is a claim that should be settled as soon as possible,
including the prospect of settlement in the International Court of
Justice. On its part, the Philippines persistently offered the settlement
of dispute arising from its claim to Sabah.
6.1. In February 1964, the Malaysian Prime Minister had the
understanding with the Philippine President to discuss as soon as
possible the best way of settling the dispute, not precluding reference
to the International Court of Justice.
6.2. In August 1964, the two governments agreed in an exchange of
aides memoir to a meeting of their representatives in Bangkok for the
purpose of clarifying the Philippine claim and of discussing the means
of settling the dispute.
6.3. In February 1966, in response to Malaysias diplomatic note
reiterating its assurance to comply with the Manila Accord and the
concomitant Joint Statement, the Philippines proposed that both
Governments agree as soon as possible on a mode of settlement that is
mutually acceptable to both parties.
6.4. In June 1966, the two Governments, in a joint communiqu, agreed
once again to abide by the Manila Accord and the Joint Statement; they
reiterated their common purpose to clarify the Philippine claim and the
means of settling it.
6.5. In July 1968, the Philippine delegation presented the Malaysian
delegation with a written question, Will you discuss with the modes of
settlement of our claim at the conference in Bangkok, irrespective of
your own unilateral assessment of the sufficiency of the clarification
given? Malaysias answer was unqualifiedly in the affirmative.
6.6. In August 1968, again in a joint communiqu, the two Governments
agreed that talks on an official level would be held as soon as possible
regarding the Philippine claim to Sabah.
6.7. The foregoing undertakings assume significance for the reason that
they are not unilateral acts of the Philippines; they are commitments
jointly made by Malaysia and the Philippines. They repeatedly affirm
Malaysias recognition of the existence of the Philippine claim to Sabah
and its willingness to settle the dispute arising from this claim.
6.7.1. In complete disregard of its commitments, Malaysia has been in
full retreat. It is now in denial of the existence of the Philippine claim to
Sabah. In consequence, it rests its case on the illegality of the
colonization of Sabah by the British Crown.
Statutory claim over Sabah
In the case of Magallona v. Ermita, the Supreme Court held that the
statutory claim over Sabah under RA5446 was retained. "Petitioners"
argument for the invalidity of RA9522 for its failure to textualize the
Philippines's claim over Sabah in North Borneo is also untenable. Sec.2
of RA 5446, which RA9522 did not repeal, keeps open the door for
drawing the baselines in Sabah.
Sources:
Justice Antonio Carpio on Protecting the Nations Marine Wealth in the
West Philippine Sea. (2014)
The West Philippine Sea: Territorial and Maritime Jurisdiction Disputes
by Aileen S.P. Baviera, PhD and Jay Batongbacal, JSD of the University of
the Philippines. The Asian Center and Institute for Maritime Affairs and
Law of the Sea. (2013)
Outline of the Philippine Claim to Sabah by Atty. Merlin M. Magallona of
the University of the Philippines. (2013)
United Nations Website:
http://www.un.org/depts/los/convention_agreements/texts/unclos/par
t2.htm;
http://www.un.org/depts/los/convention_agreements/convention_hist
orical_perspective.htm#The%20Question%20of%20Universal%20Partici
pation%20in%20the%20Convention