Commentaries of Fr. Joaquin G. Bernas, College of Law Dean, Ateneo de Manila University, on the Philippine Claim to Sabah

b. ". . . all other territories belonging to the Philippines by historic right or legal title."

Under the 1973 Constitution, aside from the Philippine archipelago, Philippine territory also includes "all other territories belonging to the Philippines by historic right or legal title." What are these other territories?

The history of this provision goes back to the last clause of Article I of the 1935 Constitution which included "all territory over which the present Government of the Philippine Islands exercises jurisdiction." Section I of the first draft of the 1973 version updated the 1935 version to read: "all the territory over which the Government of the Philippines was exercising jurisdiction on July 4,1946 as well as territory which said government has acquired or over which it has a right."  The second draft simplified the modification thus: "all other territories over which the government of the Philippines has been exercising jurisdiction or over which it has a right."  The final 1973 version was the draft reported out on February 17, 1972.

It will be recalled that the last clause of Article I of the 1935 Constitution was intended to ensure the inclusion of the Batanes Islands within Philippine territory. In his sponsorship speech delivered on February 11, 1972, Delegate Custodio Villalva of Batanes said that the first portion of Section 1 of the second draft saying "all other territories over which the government of the Philippines has been exercising jurisdiction" was a carry-over from the 1935 Constitution "expressed in the imperfect or durative tense and intended to place the ten small islands of the province of Batanes under the sovereignty of the Philippines." Committee Report No. 01 also said that the phrase found in the first draft which referred to "territory which said government has acquired or over which it has a right" was "intended to cover the claim to Sabah which has been filed by the Republic of the Philippines, and the possible claim to Freedom Land and the Marianas Islands." This comment of Committee Report No. 01 is also applicable to the clause in the second draft which referred to all territory "over which (the Philippines) has a right." Thus, both the first and the second draft contained a clause intended to cover the Batanes Islands, which certainly formed part of Philippine territory, and all other territories over which the Philippines might have a claim both then and in the future. The clause was inserted in answer to the clamor to protect and ensure Philippine claim to territories not covered by prior treaties. The intent was to avoid forfeiture of these claims by their omission from the constitutional definition.

The same intent was carried over into the final draft which said "all the other territories belonging to the Philippines by historic right or legal title." Committee Chairman Quintero said that the word "belonging" was used both in the present and future sense: "now or later may belong." By "historic right," Quintero said, Batanes belonged to the Philippines because in all its history Batanes had always been apart of the Philippines. By "historic right." he said, the Marianas Islands might also belong to the Philippines depending on historical evidence. As for Sabah, Quintero said that Philippine jurisdiction was based on "legal title" perfected in 1962. "Legal title" was used to mean all accepted legal modes of acquiring territory.

Briefly, then, the phrase "all other territories" was a catch-all used to cover areas linked to the Philippines with varying degrees of certainty and firmness. It covered Batanes, which undisputedly belonged to the Philippines. It covered Sabah, over which the Philippines had filed a formal claim. It covered the Marianas Islands and Freedom Land, claim over which was under investigation. It covered any other territory which the Philippines might acquire in the future through accepted international modes of acquisition. The clause therefore was nothing more than an insurance clause which could be meaningful only if supported by title extraneous to the Constitution.

Like the 1934-1935 Convention, the 1971 Convention did not claim that a constitutional provision standing by itself is binding international law. During the 1973 debates on the provision on national territory, the local newspapers played up the intent of the Convention to secure the claim to Sabah and the possible claim to the Marianas Islands and Freedom Land. The impression was easily given that, by a unilateral act, the Convention was attempting to add new territory to what was defined in the 1935 Constitution. It is clear from a study of Convention records, however, that there was no such attempt. But the 1973 language tended to admit such an interpretation. The 1987 language attempts to remedy the misimpression.

The only clear claim made by the 1971 Convention of the power unilaterally to delimit territorial boundaries was with respect to inland and territorial waters. But even in this, the Convention was merely pursuing the Republic's existing official policy of pushing for international acceptance of the archipelagic principle. It was a claim therefore which the Convention realized must be submitted to determination by international convention.

Is the Philippine territory bigger because of the new article on national territory ? Not really. The Treaty of Paris is the 1935 Constitution's principal point of reference for the delineation of Philippine territory. Although the 1973 and 1987 Constitutions make no mention of the Treaty of Paris or any other treaty, the Philippine archipelago of the new Constitution is, according to the sponsors of the provision, also the archipelago of the Treaty of Paris. If the present provision accomplishes anything at all, its omission of any mention of the Treaty of Paris in the 1935 Constitution only succeeds in putting the Philippines in an ambiguous il not embarrassing position. On the one hand, it wishes to be washed of the colonial taint of the treaty; on the other hand, it claims the longitude and latitude lines of the treaty as the rightful boundaries of the archipelago and of its territorial waters.

The 1973 Constitution affirmed Philippine title to the Batanes Islands by "historic right." But this too was adequately covered by the last clause of Article I of the 1935 Constitution. Under the 1987 Constitution, it certainly is covered by the clause "other territories over which the Philippines has sovereignty or jurisdiction." Moreover, under the definition of an archipelago in Article 46 of the 1982 Convention on the Law of the Sea, the Batanes Islands can be considered part of the archipelago.

The 1973 Constitution ensured the possibility of claiming other territories on the basis of "historic right or legal title." In this it merely affirmed what the Republic had been doing under the 1935 Constitution. The 1987 version prescinds from the question and relies on generally accepted principles of international law which recognizes legal modes of establishing legal claim to territory. If Sabah, the Marianas, and Freedom Land should eventually be recognized by the world as annexed to the Philippines, it will be in virtue of "historic right or legal title" independent of the 1973 or 1987 Constitution.

The extent and degree of control over territorial waters, internal waters, air-space, sea-bed, sub-soil, insular shelves and other submarine areas cannot, in our modern world, be determined with finality by a unilateral fiat. Of this the 1971 Convention was well aware when it enacted the new provision. So was the 1986 Constitutional Commission. However, to the extent that the provisions of Article 47 of the 1982 Convention on the Law of the Sea might conflict with Philippine constitutional law and rights based on treaties, such provisions are repudiated.

What then did the 1973 provision gain for the Philippines? A security blanket, a rhetorical assertion of historic identity, "decolonialization" on paper, and an embarrassing muddling of Philippine position towards the Treaty of Paris.

As to the 1987 version, it merely removed language possibly offensive to an ASEAN neighbor and achieved a more logical sequencing of the elements that make up the territory but preserved everything else found in the 1973 Constitution.