MERLIN M. MAGALONA ET. AL., VS.

EDUARDO ERMITA, AUGUST 16, 2011

655 SCRA 476 – Political Law – National Territory – RA 9522 is Constitutional
In March 2009, Republic Act 9522, an act defining the archipelagic baselines of the Philippines was
enacted – the law is also known as the Baselines Law. This law was meant to comply with the terms
of the third United Nations Convention on the Law of the Sea (UNCLOS III), ratified by the
Philippines in February 1984.
Professor Merlin Magallona et al questioned the validity of RA 9522 as they contend, among
others, that the law decreased the national territory of the Philippines hence the law is
unconstitutional. Some of their particular arguments are as follows:
a. the law abandoned the demarcation set by the Treaty of Paris and other ancillary treaties – this
also resulted to the exclusion of our claim over Sabah;
b. the law, as well as UNCLOS itself, describes the Philippine waters as “archipelagic” waters which,
in international law, opens our waters landward of the baselines to maritime passage by all vessels
(innocent passage) and aircrafts (overflight), undermining Philippine sovereignty and national
security, contravening the country’s nuclear-free policy, and damaging marine resources, in
violation of relevant constitutional provisions;
c. the classification of the Kalayaan Island Group (KIG), as well as the Scarborough Shoal (bajo de
masinloc), as a “regime of islands” pursuant to UNCLOS results in the loss of a large maritime area
but also prejudices the livelihood of subsistence fishermen.
ISSUE: Whether or not the contentions of Magallona et al are tenable.
HELD: No. The Supreme Court emphasized that RA 9522, or UNCLOS, itself is not a means to
acquire, or lose, territory. The treaty and the baseline law has nothing to do with the acquisition,
enlargement, or diminution of the Philippine territory. What controls when it comes to acquisition
or loss of territory is the international law principle on occupation, accretion, cession and
prescription and NOT the execution of multilateral treaties on the regulations of sea-use rights or
enacting statutes to comply with the treaty’s terms to delimit maritime zones and continental
shelves.
The law did not decrease the demarcation of our territory. In fact it increased it. Under the old law
amended by RA 9522 (RA 3046), we adhered with the rectangular lines enclosing the Philippines.
The area that it covered was 440,994 square nautical miles (sq. na. mi.). But under 9522, and with
the inclusion of the exclusive economic zone, the extent of our maritime was increased to 586,210
sq. na. mi. (See image below for comparison)
If any, the baselines law is a notice to the international community of the scope of the maritime
space and submarine areas within which States parties exercise treaty-based rights.
Anent their particular contentions:
a. The law did not abandon the Sabah claim. This is evident on the provision of Section 2 of RA
9522:
Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as
provided in this Act is without prejudice to the delineation of the baselines of the territorial sea
around the territory of Sabah, situated in North Borneo, over which the Republic of the
Philippines has acquired dominion and sovereignty.

b. UNCLOS may term our waters as “archipelagic waters” and that we may term it as our
“internal waters”, but the bottom line is that our country exercises sovereignty over these
waters and UNCLOS itself recognizes that. However, due to our observance of international law,
we allow the exercise of others of their right of innocent passage. No modern State can validly
invoke its sovereignty to absolutely forbid innocent passage that is exercised in accordance with
customary international law without risking retaliatory measures from the international
community.

c. The classification of the KIG (or the Spratly’s), as well as the Scarborough Shoal, as a regime of
islands did not diminish our maritime area. Under UNCLOS and under the baselines law, since they
are regimes of islands, they generate their own maritime zones – in short, they are not to be
enclosed within the baselines of the main archipelago (which is the Philippine Island group). This
is because if we do that, then we will be enclosing a larger area which would already depart from
the provisions of UNCLOS – that the demarcation should follow the natural contour of the
archipelago.
Nevertheless, we still continue to lay claim over the KIG and the Scarborough Shoal through
effective occupation.