7 - What Next?

Summary

A December 1991 “roundtable” in the Philippines recommended, among other things, “The Philippines should resolve ambiguities in Philippine law and practice towards a clear-cut, consistent and well-grounded definition of our national territory and maritime boundaries.” As discussed in the previous chapters, although Manila has made some significant advances in this regard, several issues pertaining to the national territory and maritime boundaries remain to be resolved.

One of these is how to treat the waters between the Philippines’ archipelagic baselines and the Treaty of Paris limits. One view, whose adherents seem to be decreasing in number, is that the phrase in the current Constitution, “all other territories over which the Philippines has sovereignty or jurisdiction”, includes all the waters within the Treaty of Paris limits, which cannot but be considered as territorial waters. This view is held, even if the quoted constitutional provision omits the explicit mention of the Spanish-American treaty or any other agreement between two foreign powers as something redolent of colonialism. A contrary view is that such an interpretation of the constitutional provision would violate the UNCLOS, which the Philippines ratified, albeit with “reservations”, and which provides for territorial waters only up to 12 nautical miles beyond the baselines. A pragmatic outlook was expressed by the late Arturo Tolentino himself, a leading authority on maritime issues and the head of the Philippine delegations to all three international conferences on the law of the sea. Tolentino pointed out that, if the Philippines regarded the waters beyond the baselines merely as its exclusive economic zone, the country would have authority over the resources of a larger expanse of water than if the waters within the Treaty of Paris limits were viewed as territorial waters, a view that would not, in any case, be shared by other states.

A related question is whether the treatment, as official policy, of the expanse of water beyond the baselines and within the Treaty of Paris limits as less than Philippine territory would require a constitutional amendment. This question has to be answered. A constitutional amendment would oblige Filipinos to go through a laborious and divisive political and legal process that could open many cans of worms in order to make the country's maritime regime unequivocally compliant with the UNCLOS.