The Principle of Territoriality is one of the general characteristics of criminal law. It denotes those penal laws which are enforceable only within its territory, subject to certain exceptions as hereinbelow discussed.
Under the Article 21 of the Revised Penal Code:
“Except as provided in the treaties of preferential application, the provisions of the revised penal code shall be enforced not only within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone, but also outside of its jurisdiction, against those who:2
“(1) Should commit an offense while on a Philippine ship or airship;2
“(2) Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and securities issued by the Government of the Philippine Islands;2
“(3) Should be liable for acts connected with the introduction into these islands of the obligations and securities mentioned in the preceding number;2
“(4) While being public officers or employees, should commit an offense in the exercise of their functions;2 or
“(5) Should commit any of the crimes against national security and the law of nations, defined in the Title One of the Book Two of this Code.”2
What does the principle of territoriality mean?
The transgression against the State’s Penal Laws committed within its territory shall be prosecuted solely by the said State whose jurisdiction over such criminal acts arises from the statute punishing such offense.
Ergo, criminal acts against the country perpetrated within its territory are alone cognizable by the state’s jurisdiction over the aforementioned transgressions.
Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in the Philippine territory, subject to the principles of public international law and to treaty stipulations.3
Limits and Scope of Territory
The territory of a country is not limited to the land where its sovereignty resides. It also comprises the maritime and interior waters as well as the atmosphere.
The Terrestrial Jurisdiction means that the same is exercised over the land.
Fluvial Jurisdiction is the jurisdiction that is exercised over maritime and interior waters.
On the other hand, Aerial Jurisdiction connotes jurisdiction that includes the atmosphere.
Flagship Determines Territorial Jurisdiction
It must be noted, as well, that it is the registration of the vessel or aircraft, in accordance with the laws of the Philippines; and not the citizenship of its owner, which makes it a Philippine ship or airship.
The sovereignty of a State and its penal laws shall extend to all the air space which covers the State’s territory.
Nonetheless, this is subject to the right of way or easement in favor of foreign aircrafts, upon compliance with appropriation communication and security protocols, as the case may be.
State’s Monetary Currency
On matters of counterfeiting Philippine Currency or Legal Tender, the Philippine Revised Penal Code also stretches the territoriality principle of its jurisdiction. Thus:
“Any person who makes false or counterfeit coins (Art. 163, Philippine Revised Penal Code) or forges treasury or bank notes or other obligations and securities in a foreign country may be prosecuted before our courts for violation of Art. 163 and Art. 166 of the Revised Penal Code.”4
What is territoriality in study of crime?
The Philippine State has adopted the territoriality principle and incorporated it in the application of penal laws and prosecutions of individuals who committed criminal transgressions within the contemplation of its territory, whether legal or actual.
This has been given an extensive application for crimes committed within or outside of its territorial borders.
There is the “subjective” application or subjective territorial principle which recognizes the power and authority of the one State to enact laws criminalizing an act within its territorial jurisdiction or borders.
Thus, jurisdiction is founded when any essential constituent element of a crime is consummated on state territory.
Generally accepted and often applied is the “objective” territorial principle, where jurisdiction is determined when any essential constituent element of a crime is consummated on state territory but completed or consummated abroad or other elements thereof are also committed elsewhere other than the primary State.
In studying crime in relation to territory, both within or outside of the country, where jurisdiction over such criminal acts may be acquired, the main source for the Philippine State, among others, is Article 2 of the Revised Penal Code of the Philippines.
Said provision [Article 2] enumerates, as well, several instances where extra-territorial application of Philippine penal laws may be allowed to operate. These are:
1] committing offenses in a Philippine ship or airship
2] committing crime outside of Philippine Territory in relation to his office or exercise of his functions as such
3] committing crimes within the Philippine Embassy or Consular Offices in another State
2] forging any coin or currency note or obligation of the Philippines
3] introducing the same in the territory
4] committing crimes against national security and the law of nations
The crimes and felonies above-stated, even if perpetrated outside the Philippine territorial borders, can be tried in the Philippines. The reason is that its pernicious effects are felt in the primary country.
Consequently, territoriality in the study of crime is knowing where the elements of the offense transpired, whether within or outside the territorial borders of the country.
The venue of its commission will determine its jurisdiction. Applying the above principle, we will know whether a crime is subject to the jurisdiction of the primary country even if the same is committed outside its territory.
What is territorial jurisdiction in criminal law?
As can be deduced from the above, and in fact it is a criminal law principle, venue in criminal prosecution is jurisdictional, subject to the application of extra-territoriality principle as far as allowable.
Thus, territorial jurisdiction over a certain offense should be determined by establishing first where it has been actually committed.
Crimes Committed outside of State’s Territorial Jurisdiction
The Philippine Revised Penal Code lists down several circumstances wherein the territoriality principle may apply outside the territory of the Philippines.
In terms of international comity [par in parem non habet imperium] and respect for other sovereign states, one country cannot take measures on the territory of another state in connection with the enforcement of national laws and judicial processes of the former without the consent of the latter.
Persons may not be arrested on the territory of another state, except under the terms of a treaty or other form of consent given. One example of this is extradition treaty.
Being one of the principles in criminal law, territoriality denotes those penal laws of the Philippines are enforceable only within its territory.
Extra -Territorial Crimes
In applying the said principle, the offense must be committed outside the Philippine territory, it still acquires jurisdiction provided that the offense is committed in a Philippine Ship or airship.
The registration of the vessel determines its nationality. If a Ship or Airship is registered in the Philippines, its nationality is Filipino.
The vessel or aircraft’s registration, in accordance with the laws of the Philippines; and not the citizenship of its owner, which makes it a Philippine ship or airship.
When an individual forges, simulates, or counterfeits any coin or currency note or obligation of the Philippines in another country and introduce the same in another territory, the case may still be tried in the Philippines for the violation of the Philippine Criminal Statutes, where it may be applicable.
The felonies referred to, and stated, in Article 2 of the Philippine Revised Penal Code are the situations where an offender can be the subject of trial in the Philippines, despite its extra-territorial application.
In exercising jurisdiction involving criminal matters, the most common and fundamental method is to prescribe is the territorial jurisdiction.
The primary basis of criminal jurisdiction for any state or sovereignty is territorial, this being one of the generally accepted view or principle in public international law.
What is the objective territorial principle?
Under the objective aspect of territorial jurisdiction, even if the perpetrator of an act or offense performs or committed the same outside of State’s borders, the latter still has the power to adopt a criminal law that applies to crimes or offense that take effect within its territorial borders.
The objective aspect of the territorial principle became vital because of the rise of the cybercrime issues which the internet plays a big part.
Crimes nowadays can be conveniently committed outside of State’s territory though the use of internet technology or digital platforms.
Inter-state human trafficking, likewise, belong in this category.
Subjective Territorial Principle
Subjective territoriality relies upon three main principles. It specifies, and instructs us, that the most useful pieces of evidence to solve a crime can be found on the place where the offense or a crime took place or situated.
Subjective territoriality ensures that due process is observed. It should comply with the legal principles as regards who are the individuals that must be warned, and who should be informed that a certain act is criminalized.
A perfectly and validly enacted criminal Statute rests on the above presumption of legality.
It adopts to the idea that it is more important for the State to sanction or penalize the expression of a criminal will on its territory than to maintain and protect their public order. However, the latter is an incidental result thereof.
Advocates of this principle said that the aim of territorial jurisdiction is indeed not to re-establish a balance, on an otherwise manifest dissymmetry, between the subject who dared to violate the penal law and the all powerful an mighty sovereign which showcases his strength.
The subjective territorial principle recognizes the power of the state in adopting criminal laws to crimes that are physically committed within its territorial jurisdiction.
A state can adopt a law that makes it a crime for anyone to commit it within its borders and the subjective aspect of the territorial principle would recognize the power of the state to adapt to such law.
However, when it comes to the context of cybercrime, subjective territorial jurisdiction is of limited use. The state can exercise this principle on the territory of which an offense or a crime occurred.
It is of limited use because it is very difficult to identify the location where the cybercrime took place.
In the case of US vs. Fowler,5 the Supreme Court held that the Philippine court has no jurisdiction over the crime of theft committed on the high seas on board a vessel not registered or licensed in the Philippines. It likewise ruled that foreign merchant ship is considered an extension of the territory of the country to which it belongs. Consequently, a crime committed within the high seas on board a foreign merchant vessel is not triable by our courts.
Final Thoughts
Both the State’s citizens and the foreigner residing, transient, or sojourning therein, as a general rule, are mandated to adhere and follow the laws of the aforesaid State.
In the same vein, aliens, being bound by the Philippine penal laws, are also protected by the same Statute, while they are within the Philippine territory.
Municipal laws are binding to aliens insofar as they are within territorial boundaries of Philippine archipelago.6
Article I of the 1987 Philippine Constitution7 defines our territory:
“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.”8
This will tacitly reveal that, while certain areas may be outside the Philippine baselines, jurisdiction can still be exercised insofar as it is recognized by international community or over which the Philippines has sovereignty there for.
Undoubtedly, the Philippines can still assume jurisdiction on certain areas outside of its baselines for the above-stated purposes.
Hence, jurisdiction being established, the principle of territoriality is applicable. The characteristic of criminal law supposes that as rule penal laws of the Philippines are enforceable only within its territory but also to certain exceptions.
UNCLOS is a generally accepted international law. Considering that the Philippine State adopts such principles as part of its domestic law [Art. II, Section 2, Philippine Constitution], UNCLOS provisions has now become part of Philippine law.
Consequently, the territories and jurisdiction, which UNCLOS assigned, are locally binding. Philippine penal laws are, therefore, enforceable.
- Philippine Penal Code[↩]
- Ibid.[↩][↩][↩][↩][↩][↩]
- Article 14, new Civil Code of the Philippines[↩]
- Revised Penal Code of the Philippines[↩]
- G.R. No. 496. December 31, 1902[↩]
- Article 14, New Civil Code of the Philippines[↩]
- Philippine Constitution, 1987[↩]
- Ibid., Article I[↩]
