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the MOA-AD, contains many provisions which are consistent with the international legal concept of association, specifically the following: the
BJEs capacity to enter into economic and trade relations with foreign countries, the commitment of the Central Government to ensure the BJEs
participation in meetings and events in the ASEAN and the specialized UN agencies, and the continuing responsibility of the Central
Government over external defense. Moreover, the BJEs right to participate in Philippine official missions bearing on negotiation of border
agreements, environmental protection, and sharing of revenues pertaining to the bodies of water adjacent to or between the islands forming
part of the ancestral domain, resembles the right of the governments of FSM and the Marshall Islands to be consulted by the U.S. government
on any foreign affairs matter affecting them.
These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the status of an associated state or,
at any rate, a status closely approximating it.
The concept of association is not recognized under the present Constitution. No province, city, or municipality, not even the ARMM, is
recognized under our laws as having an associative relationship with the national government. Indeed, the concept implies powers that go
beyond anything ever granted by the Constitution to any local or regional government. It also implies the recognition of the associated entity as
a state. The Constitution, however, does not contemplate any state in this jurisdiction other than the Philippine State, much less does it provide
for a transitory status that aims to prepare any part of Philippine territory for independence
Anent their particular contentions:
a. The law did not abandon the Sabah claim. This is evident on the provision of Section 2 of RA 9522:
Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in this Act is without prejudice to the
delineation of the baselines of the territorial sea around the territory of Sabah, situated in North Borneo, over which the Republic of the
Philippines has acquired dominion and sovereignty.
b. UNCLOS may term our waters as archipelagic waters and that we may term it as our internal waters, but the bottom line is that our
country exercises sovereignty over these waters and UNCLOS itself recognizes that. However, due to our observance of international law, we
allow the exercise of others of their right of innocent passage. No modern State can validly invoke its sovereignty to absolutely forbid innocent
passage that is exercised in accordance with customary international law without risking retaliatory measures from the international community.
c. The classification of the KIG (or the Spratlys), as well as the Scarborough Shoal, as a regime of islands did not diminish our maritime area.
Under UNCLOS and under the baselines law, since they are regimes of islands, theygenerate their own maritime zones in short, they are not
to be enclosed within the baselines of the main archipelago (which is the Philippine Island group). This is because if we do that, then we will be
enclosing a larger area which would already depart from the provisions of UNCLOS that the demarcation should follow the natural contour of
the archipelago.
Nevertheless, we still continue to lay claim over the KIG and the Scarborough Shoal through effective occupation.
NOTES:
Under UNCLOS and the baselines law, we have three levels of maritime zones where we exercise treaty-based rights:
a. territorial waters 12 nautical miles from the baselines; where we exercise sovereignty
b. contiguous zone 24 nautical miles from the baselines; jurisdiction where we can enforce customs, fiscal, immigration, and sanitation
laws (CFIS).
c. exclusive economic zone 200 nautical miles from the baselines; where we have the right to exploit the living and non-living resources in the
exclusive economic zone
Note: a fourth zone may be added which is the continental shelf this is covered by Article 77 of the UNCLOS.