G.R. No. 182734 - Concurring Opinion

G.R. No. 182734, January 10,2023,
♦ Decision, Gaerlan, [J]
♦ Separate Concurring Opinion, Gesmundo, [CJ]
♦ Concurring Opinion, Leonen, [J]
♦ Dissenting Opinion, Lazaro-Javier, [J]
♦ Dissenting Opinion, Zalameda, [J]

BAYAN MUNA PARTY-LIST REPRESENTATIVES SATUR C. OCAMPO AND TEODORO A. CASIÑO, ANAKPAWIS REPRESENTATIVE CRISPIN B. BELTRAN, GABRIELA WOMEN'S PARTY REPRESENTATIVES LIZA L. MAZA AND LUZVIMINDA C. ILAGAN, REP. LORENZO R. TAÑADA III, AND REP. TEOFISTO L. GUINGONA III, PETITIONERS, VS. PRESIDENT GLORIA MACAPAGAL-ARROYO, EXECUTIVE SECRETARY EDUARDO R. ERMITA, SECRETARY OF THE DEPARTMENT OF FOREIGN AFFAIRS, SECRETARY OF THE DEPARTMENT OF ENERGY, PHILIPPINE NATIONAL OIL COMPANY, AND PHILIPPINE NATIONAL OIL COMPANY EXPLORATION CORPORATION, RESPONDENTS.

I concur in the ponencia. The Joint Marine Seismic Undertaking (the Undertaking) was executed in grave violation of Article XII, Section 2 of the Constitution. While the Undertaking expired in 2008, this issue is of paramount public interest, presenting an opportunity for this Court to navigate the limitations of how and what the State can bargain over the exploration of our natural resources.

The exploration of natural resources, as the ponencia says, is exclusively reserved for Filipinos, such that any information generated from this activity within the State's territory cannot be shared with foreign corporations. Ownership of data collected from exploration activities cannot be joint with other countries. However, the State may directly explore its natural resources by contracting foreign corporations under the limited exception provided under Article XII, Section 2 of the Constitution. In doing so, the State must retain exclusive control over the exploration activities, including any information they produce.

While I agree with the ponencia that the Undertaking is unconstitutional, there is a need to navigate the conceptual framework of the State's sovereignty and jurisdiction over its national territory and the extent of other countries' participation in it.

Under Article I of the Constitution, 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[.]"1

At bottom, sovereignty is "the absolute right to govern" within a particular territory.2 On the other hand, jurisdiction is an attribute of sovereignty that confers, through law, "power and authority to apply the law."3 Reagan v. Commissioner of Internal Revenue4 describes the sovereign prerogatives of a state within its territory:

Inherent in a state's sovereignty is its power to define the limits of its national territory where it may exercise jurisdiction, as reflected under the Constitution and relevant national laws. It may also bind itself to international obligations limiting its jurisdiction through vanous international instruments to which a state may be a party.

To define the national territory and the State's powers over the natural resources found in it, it is relevant to discuss the evolution of the national territory in the Constitution, relevant national laws, and international law.

The 1935 Constitution reflects our colonial history. It defines the national territory as comprising all the territories that Spain ceded to the United States of America under the Treaty of Paris on December 10, 1989, and the subsequent treaty in Washington on November 7, 1900, including the treaty between the United States and Great Britain on January 2, 1930. The definition includes the phrase "all territory over which the present Government of the Philippine Islands exercises jurisdiction."6

The 1973 Constitution amended the definition to remove reference to the treaties mentioned in the 1935 Constitution. Our national territory was defined to include all the islands and waters embraced in the Philippine archipelago and all territories that the Philippines own by historic right or legal title:

SECTION 1. 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 other 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.7 (Emphasis supplied)

The 1987 Constitution largely adopted the 1973 definition, but modified it to remove reference to historic right or legal title and replaced it with the phrase "all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains[.]" In other words, our national territory is what the State declares it to be. The provision reads:

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.8

All throughout, the national territory was consistently defined as an archipelagic state. The concurring Opinion of Justice Presbiterio Velasco, Jr. in Magallona v. Ermita9 detailed how the definition of national territory evolved:

The national territory includes "all other territories over which the Philippines has sovereignty or jurisdiction[.]" These other territories are defined in several national laws and international law.

Republic Act No. 3046 defined the baselines of the Philippine archipelago in 1961. It also delineated our internal waters, which include all bodies of water found within the baselines.11 These waters "are within the land boundaries of the state or are closely linked to its land domain ... [and] have been considered as legally equivalent to the national land."12 Under Republic Act No. 3046, the maritime regime of the Philippines comprised its internal waters and its territorial sea, or "all the waters beyond the outermost islands of the archipelago but within the limits of the boundaries set forth in the aforementioned treaties[.]"13

In 1968, Republic Act No. 5446 amended the archipelagic baselines to correct the typographical errors. More important, it declared that the drawing of archipelagic baselines is without prejudice to the country's sovereignty and dominion over the territory of Sabah in North Borneo.14

In 1978, Presidential Decree No. 1596 declared the Kalayaan Island Group in the continental margin of the archipelago as part of the Philippine territory,15 based on "history, indispensable need, and effective occupation and control established in accordance with international law[.]"16

As for natural resources, Republic Act No. 387 expanded the Philippines' jurisdiction beyond its territorial waters to its continental shelf. It declared State ownership of "[a]ll natural deposits or occurrences of petroleum or natural gas in public and/or private lands in the Philippines":

ARTICLE 3. State ownership. - All natural deposits or occurrences of petroleum or natural gas in public and/or private lands in the Philippines, whether found in, on or under the surface of dry lands, creeks, rivers, lakes, or other submerged lands within the territorial waters or on the continental shelf or its analogue in an archipelago, seaward from the shores of the Philippines which are not within the territories of other countries, belong to the State, inalienably and imprescriptibly.17 (Emphasis supplied)

Thus, in 1968, Proclamation No. 370 declared the Philippines' jurisdiction and control over ail mineral and other natural resources in its continental shelf. This was to encourage further exploration and exploitation of new sources of petroleum and other natural resources.18 The proclamation reads:

[A]ll the mineral and other natural resources in the seabed and subsoil of the continental shelf adjacent to the Philippines, but outside the area of its territorial sea to where the depth of the superjacent waters admits of the exploitation of such resources, including living organisms belonging to sedentary species, appertain to the Philippines and are subject to its exclusive jurisdiction and control for purposes of exploration and exploitation. In any case where the continental shelf is shared with an adjacent state, the boundary shall be determined by the Philippines and that state in accordance with legal and equitable principles. The character of the waters above these submarine areas as high seas and that of the airspace above those waters, is not affected by this proclamation.19 (Emphasis supplied)

This proclamation expanded the national territory "over which the present Government of the Philippine Islands exercises jurisdiction"20 to include the continental shelf. Natural resources and other minerals in the seabed and subsoil of the continental shelf, including sedentary living organisms, are within the State's "exclusive jurisdiction and control for purposes of exploration and exploitation." Excluded from the national territory are the "waters above these submarine areas as high seas and that of the airspace above those waters[.]"21

In 1978, Presidential Decree No. 1599 established the exclusive economic zone of the Philippines, which was described as a "recognized principle of international law[.]"22 It provides the rights of the Philippines in its exclusive economic zone within 200 nautical miles "beyond and from the baselines from which the territorial sea is measured":

While Proclamation No. 370 extended jurisdiction and control to the continental shelf, Presidential Decree No. 1599 is more expansive: It declares sovereign rights over the exclusive economic zone, which includes the seabed, subsoil, superjacent waters, and all the living and non-living resources found in it. Exploration and exploitation of any resources found in the country's exclusive econornic zone require the State's prior agreement and authorization:

As regards other states, they enjoy freedoms of navigation and overflight, laying of submarine cables and pipelines, and other internationally lawful uses of the sea relating to navigation and communications within the exclusive economic zone.25

Thus, before the Philippines became a party to the United Nations Convention on the Law of the Sea (UNCLOS),26 it has already defined its national territory and the scope of its rights in its internal and territorial waters, establishing jurisdiction over its continental shelf and exclusive economic zone.

On December 10, 1982, the Philippines signed the UNCLOS, and ratified the same on May 8, 1984.27

Article 309 of the UNCLOS prohibited state parties from making reservations or exceptions, except when expressly permitted by the other articles.28 Thus, the UNCLOS was also referred to as the "Constitution of the Ocean."29

The farther the maritime zone is-from land, the state's sovereign rights over it are more limited. This follows the international law principle that "land is the legal source of the power which a State may exercise over territorial extensions to seaward,"30 and is the general framework involving rights and obligations of states within different maritime zones.

The sovereignty of states is recognized within its land territory, archipelagic waters, and territorial sea,31 subject to the right of innocent passage of foreign ships.32 A state's sovereign rights extend to the "air space over the archipelagic waters, as well as to their bed and subsoil, and the resources contained therein."33

Under the UNCLOS, a state has the following mant1me regimes: territorial sea,34 contiguous zone,35 exclusive economic zone,36 and the continental shelf.37 The maritime zones of the Philippines, being an archipelagic state, proceed from its archipelagic baselines "joining the outermost points of [its] outermost islands and drying reefs[.]"38 These baselines generally conform to the archipelago's configuration.39

The UNLCLOS defines the rights and obligations of states within their maritime zones. It likewise provides a state's rights in another state's maritime zones.

A state's sovereignty over its territorial sea is subject to the right of all states to their ships' innocent passage,40 or that which "is not prejudicial to the peace, good order or security of the coastal State."41 Submarines are required to navigate the surface and show their flag.42 Foreign ships shall be subjected to the laws and regulations that another state may prescribe when they pass through that state's territorial sea.43 They may also be required to pass through designated sea lanes and traffic separation schemes.44 A state may undertake steps to prevent passage that is not innocent, prevent the entry of ships to its internal waters in breach of the conditions for admission, or temporarily suspend the right of innocent passage for security purposes.45 In certain cases, a state may also exercise its criminal or civil jurisdiction on foreign ships passing through its territorial seas.46

Again, a state's rights become more limited the farther the maritime zone is from the shore. The areas (i.e., airspace, supe1jacent waters, among others) where it may exercise sovereign rights are also reduced.

In the contiguous zone, the area 12 nautical miles beyond the territorial sea, the state may only exercise limited jurisdiction to "prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea" and "punish infringement of ... laws and regulations that is committed in the contiguous zone.47

Beyond the contiguous zone, 200 nautical miles from the baseline, lies the exclusive economic zone.48 A state retains its sovereign rights over the exploration, exploitation, conservation, and management of its natural resources, living or nonliving, that may be found within the seabed, its subsoil, and the waters supe1jacent to the seabed.49 The state also determines the allowable limits for catching living resources within its exclusive economic zone.50 It also has the discretion to allow other states to harvest what it cannot.51

Moreover, the state has jurisdiction over artificial islands, installations, and structures that may be established and used, marme scientific research, and the protection and preservation of its marine environment.52 The provisions on high seas also apply within the exclusive economic zone.53 Foreign states have the freedoms of "navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful use of the sea related to these freedoms[.]"54

A coastal state's continental shelf includes "the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin," not exceeding 350 nautical miles from the baselines.55 Within its continental shelf, a state has the exclusive rights to explore and exploit its mineral and nonliving resources found in the seabed and subsoil, including sedentary living organisms.56 These rights do not extend to the superjacent waters and the air space above it.57

Upon signing the UNCLOS in 1982, the Philippines made several declarations, one of which is the characterization of its archipelagic waters as internal waters.58 Due to the objections of several countries, the Philippines, seemingly withdrawing its previous declaration, stated in 1988 that it "intends to harmonize its dome.stic legislation with the provisions of the Convention" and that it "will qbide by the provisions of the said Convention."59

Thus, in 2009, the Philippines amended its archipelagic baselines through Republic Act No. 9522. It designated the Kalayaan Island Group and Bajo de Masinloc as the Regime of Islands, generating maritime zones.60

In Magallona, this Court affirmed the constitutionality of Republic Act No. 9522 as the Philippines' compliance with. its obligations under the UNCLOS. This Court explained the compromise and benefits under the new maritime regimes:

In 2012, President Benigno Aquino III issued Administrative Order No. 29, naming the western portion of our territorial seas as the West Philippine Sea.62 It expressly includes the "waters around, within and adjacent to the Kalayaan Island Group and Bajo De Masinloc, also known as Scarborough Shoal" as part of the West Philippine Sea.63

On January 22, 2013,64 the Philippines initiated arbitration proceedings before the Permanent Court of Arbitration in the Hague to resolve its dispute against China as to its source of maritime rights and entitlements in the West Philippine Sea.

Among others, the Philippines asked the Permanent Court of Arbitration to rule on China's claim of historical rights and entitlements in the West Philippine Sea vis-a-vis UNCLOS provisions. It also asked the court to rule on the maritime zones and entitlements of the disputed Scarborough Shoal and Spratly Islands, which are both claimed by parties and nonparties to the case. It also sought a ruling on the legality of China's actions within the Philippines' exclusive economic zone.65

The Permanent Court of Arbitration did not give credence to China's historic rights under the nine-dash line because it exceeds the UNCLOS limits of maritime zones oftates.66 It held that upon acceding to the UNCLOS, China superseded its other claims as a matter of law and as a matter of international commitment to resolve its incompatible claims within the UNCLOS framework.67 As for China's claim of having enforced its historic rights to the living and nonliving resources within the nine-dash line, the court found no evidence that China restricted exploiting these resources, to the exclusion and acquiescence of other states.68 Notably, it qualified that China, upon being a party to the UNCLOS, relinquished not its claim of historic rights, but the freedoms it enjoyed in the high seas, which the UNCLOS states to be part of the exclusive economic zone of other states.69

As for the Philippines' rights within its exclusive economic zone, the Permanent Court of Arbitration held:

The Permanent Court of Arbitration held that only the Philippines has sovereign rights over its exclusive economic zone and continental shelf. China has no overlapping maritime zones with the Philippines, and thus, no overlapping entitlements.71 China breached its obligations under the UNCLOS when it disregarded the Philippines' sovereign rights over its exclusive economic zone and continental shelf:

The foregoing shows that both at the national and international levels, the Philippines established its jurisdiction and sovereign rights over its exclusive economic zone and continental shelf. It prevailed before the Permanent Court of Arbitration in defending its sovereign rights against China's blatant disregard of these rights. This shows that the State has been actively exercising its sovereignty over its national territory.

I take exception to the ponencia's caution in refusing to call the agreement area as within the West Philippine Sea due to the lack of official map made publicly available, following its confidentiality clause.73 While the metes and bounds of the agreement area are uncertain, the ponencia noted that the agreement area is within our exclusive economic zone, and that it covers 80% of the Spratly Islands.74 It is a matter of judicial notice that the Spratly Islands include the Kalayaan Island Group and Scarborough Shoal, which form part of our territory.

This is sufficient basis to refer to the West Philippine Sea in relation to the agreement area. Since the agreement area is highly contested by several states, the simplest exercise of ownership that we should do is to refer to our maritime areas using the name designated by the Republic. More so here, where the controversy is the State's ownership and prerogatives over its natural resources found within its national territory.

The 1987 Constitution incorporates "generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations."75 The community of nations governed by international law is built on consent of sovereign states.76 The principles of reciprocity, comity, independence, and equality of states are the foundations of international law.77 International peace and order are achieved through recognition and deference to the equality and sovereignty of states. This means that a "state is not subject to a legal order superior to its own legal order, i.e., the national law."78 The paramount law of a state is found in its constitution:

A constitution is a system of fundamental laws for the governance and administration of a nation. It is supreme, imperiuus, absolute and unalterable except by the authority from which it emanates. It has been defined as the fundamental and paramount law of the nation. It prescribes the permanent framework of a system of government, assigns to the different departments their respective powers and duties, and establishes certain fixed principles on which government is founded. The fundamental conception in other words is that it is a supreme law to which all other laws must conform and in accordance with which all private rights must be determined and all public authority administered. Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the constitution that law or contract whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes is null and void and without any force and effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contract.79 (Emphasis supplied)

Thus, international law also recognizes the constitutional prerogatives of a sovereign state, in the same manner that its principles are considered part of the law of the land. Inherent in a state's sovereignty are its all encompassing powers and prerogatives over its national territory, including the use, enjoyment, and development of its natural resources.

Our Constitution provides the State's ownership of all natural resources,80 with the exception of those within ancestral domains.81 This ownership is based on public trust, where the State holds the natural resources for the benefit of the Filipino people.82 In my concurring opinion in Maynilad Water Services, Inc. v. Secretary of the Department of Environment and Natural Resources,83 I observed that the public trust doctrine in our natural resources is incorporated in several constitutional provisions as a necessary consequence of a republican democracy. Thus, in any dealing involving the State's natural patrimony, the primary consideration is the good of the community and the public interest it serves:

Corollary to this doctrine of public trust in natural resources, the Constitution has nationalized and reserved certain areas in the economy exclusively for Filipino citizens. This is to give effect to the State policy of developing "a self-reliant and independent national economy effectively controlled by Filipinos."85

Thus, the Constitution reserved the "nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone" for the exclusive use and enjoyment of Filipino citizens.86 This includes the exploration and development of the marine wealth in the State's territory.87

The State's ownership of natural resources as a public trust, together with nationalizing participation in it, furthers the broad goals of the national economy. The Constitution directs the State to run the economy to enable "a more equitable distribution of opportunities, income, and wealth" to raise the quality and standards of living for all, most especially the poor, marginalized, and oppressed.88 Among the goals of the economy, "equity is given prominence as the first objective of national economic development."89

While the State promotes competitive Filipino enterprises in domestic and foreign markets, it did not use corporations or associations in the mandatory reservation of the country's marine wealth. Instead, the Constitution deliberately referred to "Filipino citizens" as the ones who have the exclusive use and enjoyment of the nation's marine wealth. This means that natural persons are the ultimate beneficiaries of the public trust, not juridical persons. Regardless of the nationality of corporations, the ultimate beneficiary of the nation's patrimony should be the Filipino people.

As the owner of the natural resources, the State has the power and primary responsibility in its exploration, development, and utilization.92 Giving effect to the policies of national economy and patrimony, the 1987 Constitution has given the State a more dynamic role in managing its natural resources93 by retaining the State's full control and supervision of the activities under Article XII, Section 2, which reads:

This provision outlines the different methods through which natural resources can be explored, developed, and used, namely: (1) the State directly; (2) the State in collaboration with Filipino citizens, or corporations or associations with capital that is at least 60% Filipino-owned; (3) Filipino citizens through small-scale use of natural resources, as allowed by law; or (4) agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and use of natural resources. In any of these modes, the State must maintain full control and supervision over any kind of participation in its natural resources.94 Its agreements over its natural resources cannot be purely private endeavors.95

Notwithstanding these economic policies, the reality is that ordinary people, especially municipal fisherfolk, have little to no resources to research on and explore the area. If at all, their catch is sufficient only for their families' sustenance. They lack technical lmowledge and financial resources to explore the country's marine wealth.

Addressing these limitations, the Constitution allowed the fourth mode as discussed earlier: foreign participation in the form of "technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils."96

For pragmatic reasons, therefore, foreigners are not prohibited from participating in the country's national patrimony. Their participation is a limited exception to the reservation of the exploration, development, and utilization of natural resources to Filipino citizens and qualified corporations.97 In entering into an agreement, they must strictly comply with the requirements of Article XII,. Section 2 as to the authority, scope, terms and conditions, source, effect, and notice requirements of the agreement. These requirements are not formalities but are essential conditions for the contract's validity.98

Specifically, only the president can be the signing authority of foreign agreements; this cannot be delegated to other members of the executive branch. The scale of the project must be sufficiently large as to significantly contribute to the economic growth and general welfare of the country, since small-scale exploration, development, and use of natural resources are reserved for Filipino citizens. Local scientific and technical resources should also be availed to ensure transfer of technology and capacity. The terms and conditions of the agreement must comply with the law, in this case, Petroleum Act of 1949.99 Moreover, every foreign contract must be reported to Congress within 30 days from its execution.100

As the ponencia noted, none of the safeguards were complied with. Instead of the president, respondent Philippine National Oil Company signed the Undertaking for the Republic. I agree that the president is the only authorized signatory under the fourth mode of exploration, development, and use, and their authority cannot be delegated to another government agency or instrumentality.101 This is fatal to the validity of the Undertaking.

Moreover, I agree with the ponencia that information on exploration activities is exclusively reserved to Filipinos; its ownership cannot be jointly held with foreign corporations.102 The petroleum exploration activities in the Unde1iaking do not fall under any of the four modes under Article XII, Section 2 of the Constitution. The Undertaking allowed foreign ownership over information gathered from the exploration activities in our exclusive economic zone. In executing the Undertaking, the ponencia notes, the Philippine National Oil Company illegally bargained away the State's full control and supervision over exploration activities within the country's exclusive economic zone.103

The Republic cannot agree to a joint ownership of any information derived from exploration activities within its territory. National and international laws recognize the Philippines' sovereign rights "of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil" within its exclusive economic zone.104 Our sovereign rights do not only extend to the natural resources found there, but also to the information as to its existence. The reason is simple. The use and enjoyment of natural resources may only be possible if resources are found to exist in a particular area. Discovery of natural resources is the ultimate purpose of all exploration activities, which may eventually lead to the development and use of the natural resources found there.1âшphi1

Any information from exploration activities is just as crucial as the actual resources discovered in a specific area. Access to information shapes economic and ecological policies affecting the lives of the people. It gives a state confidence to invest in developing certain areas known to be resourcerich and maximizing their use for high results. With access to correct and reliable information, the state stands at an improved bargaining position with foreign entities that want to enter into large-scale technical or financial assistance agreements for the exploration, development, and use of the state's natural resources. Information is crucial in national security and defense. A state cannot be careless in exposing the vulnerabilities of its territory for economic gain.

The provisions of the Constitution are not mere ideals and aspirations. These are rooted from the people's long colonial history and their rejection of foreign ownership and control over their lands and natural resources.105 To remove all doubts, the policy that all natural resources are reserved for Filipino citizens has been written into the Constitution.106 Until the people renounce their beneficial ownership over their natural resources, the State must fulfill its duty to conserve and preserve its national patrimony.107 Thus, any information from exploration activities conducted within our exclusive economic zone belongs to the Republic and is reserved for Filipino citizens. The State cannot bargain its ownership away without violating the Constitution.

Accordingly, I vote to GRANT the Petition and declare the Joint Marine Seismic Undertaking as VOID and UNCONSTITUTIONAL.