I have never met Professor Jay Batongbacal, but what I know of his academic credentials inspires great respect on my part. I always have a lofty regard for academics and I continue to hold him in esteem even if he had less than flattering comments on the ConCom’s draft. On the matter of proposed Article I of the ConCom’s draft, we happen to have different opinions—and that is good, because we need the blooming of a hundred flowers in a matter so vital to the life of the nation as a draft constitution.
Batongbacal is without doubt an expert on the law of the sea, but he is not the only one who has studied and taught the subject. I would like to respond to the issues he reported raised “at the sidelines” of some conference or other, and reported by Business Mirror.
He finds the 1987 provisions “better written.” He is entitled to his own evaluation. By contrast, I find our draft far better written. For one thing, the 1987 Constitution said something about “insular shelves” over which Philippine sovereignty was supposed to extend. What concept of international law or domestic law is that? Where is it found in the Law of the Sea—insular shelves? Where did the 1987 Constitution provide for sovereign rights which, though not identical with sovereignty, are as economically and even politically important?
As regards his protest that we do not have sovereignty over the continental shelf, that is conceded, and the journal of the Con-Com debates will show that I repeatedly underscored that point. This is the reason that at the time the draft was printed, I already submitted my comments, and asked that “continental shelf” be deleted from the scope of sovereignty. In this respect, however, the 1987 Constitution, it should be pointed out, laid claim of sovereignty over our “insular shelves.” In respect to airspace, to be more precise, we would have had to write: “Until the edge of the atmosphere,” because it is conventional international law that outer space is subject to no sovereignty at all.
He reads hesitation and doubt in the draft provisions and foresees that these could lead to problematic claims and counterclaims in the future. I do not. Categorically, Section 1 declares that the Philippines “has sovereignty over islands and features outside its archipelagic baselines pursuant to the laws of the Federal Republic, the law of nations and the judgments of competent international courts or tribunals.” We are not saying that we await the dispositions of international courts or tribunals. We are asserting sovereignty over those islands and features outside the archipelagic baselines. In fact, we are asserting what has not yet been litigated: Our claim to islands and features also claimed—and usurped—by the People’s Republic of China. The arbitral tribunal that ruled in our favor in respect to maritime zones in the West Philippine Sea, rejecting, among others, China’s absurd claim to a nine-dash line, could not have settled the dispute over islands and land features, as this was not within its jurisdiction, ratione materiae.
Why then the mention of international law and of international judgments? To make clear that all our claims are anchored on international law and the jurisprudence of international tribunals, and to anticipate furthermore judgments in our favor. At the present time, the Kalayaan Island group is governed by the Regime of Islands. What is wrong in adverting to that and making explicit what the 1987 Constitution encompassed by the word “domain”? Since the archipelagic baselines could not have been extended so far as to embrace the Kalayaan Island group, Republic Act 9522 subjected them to the Regime of Islands, without any diminution or dilution of our claim to sovereignty.
Nowhere is there hesitation or doubt expressed. If anything at all, the categorical claim—“It has sovereignty”—is repeated three times.
Why did we return “historic right or legal title”? Because former Senate President Nene Pimentel was insistent that there should be constitutional basis for the government to pursue its claim to North Borneo (Sabah), and while we may not actually be in effective control of North Borneo—which is the prevailing criterion in international law insofar as sovereignty over territory goes—we lay claim to it by historic right and legal title. The question has been raised whether the nature of the title to North Borneo is patrimonial, because of the leasehold with the Sultanate of Sulu as lessor, but that is for another debate. The fact is that by this provision, the Philippines claims sovereignty over that which it might not now effectively control but to which it is entitled by historic right and legal title.
Why the mention of sovereign rights? Precisely for the reason that Batongbacal points out: Sovereignty and sovereign rights are not identical, which does not make of the latter a cipher. Economically, they are important rights: exclusive rights to marine resources (in the case of the EEZ) and exclusive right to mineral resources and sedentary species in regard to the Continental Shelf. How can it not be an improvement over the previous constitution to make explicit our claim to sovereign rights?
Why the mention of the Philippine Rise? Once more, former Senate president Nene Pimentel was adamant that no government should, in the present or in the future, compromise our claim to Benham Rise which the UN body that delineates the limits of the continental shelves has ruled to be a continental shelf of the Philippines.
Every sentence is fraught with purpose, every line has history and law as its warrant. What could be so defective about the proposal? Still, every scholar is entitled to his opinion, and to make it known to others, and I must not begrudge Batongbacal this privilege.