The Philippines' National Territory

The Philippines should make up its mind on the various controversial issues surrounding the definition of the Philippines' territory and maritime regimes and take definitive national positions on them.

The current Philippine Constitution, ratified in a plebiscite in 1987, defines the Philippines' national territory thus:

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.

The 1935 Philippine Constitution, which had been drafted and promulgated under American colonial rule but continued to govern the Philippines until the 1973 Constitution supplanted it, specifically cited the Treaty of Paris of 1898, through which Spain, having lost the Spanish-American war, handed over to the United States sovereignty over the Philippines, as well as over Puerto Rico and Guam. In the treaty, Spain also gave up all its rights in Cuba. The provision on the national territory in that constitution stated:

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 day of December, eighteen hundred and ninety-eight, the limits of which are set forth in Article III of said treaty, together with all the islands embraced in the treaty concluded at Washington between the United States and Spain on the seventh day of November, nineteen hundred, and the treaty concluded between the United States and Great Britain on the second day of January, nineteen hundred and thirty, and all territory over which the present Government of the Philippine Islands exercises jurisdiction.

On the other hand, the 1973 Constitution had this to say on the country's national territory:

The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all the other territories belonging to the Philippines by historic right or legal title, including the territorial sea, the air space, the subsoil, the sea-bed, the insular shelves, and the submarine areas over which the Philippines has sovereignty or jurisdiction. The waters around, between, and connecting the islands of the archipelago, irrespective of their breadth and dimensions, form part of the internal waters of the Philippines.

In the conventions drafting these constitutions, debates raged over the inclusion of a definition of the national territory in the country's constitutions, a definition the inclusion of which is a rarity among national constitutions. The views favouring inclusion eventually prevailed.

The nature of the waters between the main Philippine archipelago and the Treaty of Paris limits has been the subject of repeated debates and even litigation. Some voices have insisted that those waters make up part of Philippine territory. On the other hand, no country supports that view, not even the United States, which was one of the two parties to the 1898 Treaty of Paris and to the two other cited agreements.

It is to be noted that, like its Marcos-era 1973 counterpart, the post-Marcos 1987 Constitution makes no reference to treaties concluded before the country's independence, including the 1898 Treaty of Paris. However, the article on the national territory in the 1987 — and current — Constitution refers to "all other territories over which the Philippines has sovereignty or jurisdiction", while the 1973 Constitution mentions "all the other territories belonging to the Philippines by historic right or legal title", considered to be less flexible than the 1987 formulation. In the case of either formulation, some scholars interpret the territories "over which the Philippines has sovereignty or jurisdiction" or those "belonging to the Philippines by historic right or legal title" as including the waters between the country's main archipelago and the Treaty of Paris limits.

The 1982 United Nations Convention on the Law of the Sea (UNCLOS), which the Philippines ratified in 1984 and which has been in force since November [End Page...