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Clear right of passage

2019-08-27 11:41:08       source:NISCSS

August 27, 2019

Philippine legislation does not require clearance or prior notification of foreign vessels passing through the waters within its baselines


On Aug 20, Senator Christopher Lawrence Go said the Philippine government would require vessels from other countries to notify the Philippine authorities about their impending passage through "territorial waters" and get approval from proper government authority well in advance. It was reportedly a response to Chinese warships passing through the Situba Strait in July and August. Philippine Foreign Secretary Teodoro Locsin Jr also said he filed a diplomatic protest to China over the ships' passage, and Philippine presidential spokesman Salvador Panelo said it is a violation of the United Nations Convention on the Law of the Sea (UNCLOS) since they passed through the Philippine's "exclusive economic zone".


It seems that the Philippine government officials are confused about the status of waters around the Sibutu passage - whether they are territorial sea, exclusive economic zone or archipelagic waters.


Consisting of more than 7,000 islands and islets located around 600 miles off the southeastern coast of the Asian mainland, the Philippines is an Archipelagic State that made a significant contribution to the recognition of Archipelagic State status at the UN negotiation conferences of the UNCLOS.


The 1987 Philippine Constitution stated that there is no difference between internal waters and archipelagic waters while the UNCLOS distinguishes the two. In 2009, the Philippines updated its archipelagic baselines through R.A. 9522, otherwise known as an Act to Amend Certain Provisions of Republic Act No. 3046, as Amended by Republic Act No. 5446, to define the Archipelagic Baselines of the Philippines, and for Other Purposes. However, it does not identify whether the waters within the baselines are archipelagic waters or internal waters, and it did not specify the breadth of the territorial sea. Moreover, while it is a consequence of acquiring archipelagic status to designate archipelagic sea lanes passage, it has so far not submitted a proposal to the International Maritime Organization designating archipelagic sea lanes passage.


According to Article 53 paragraph 12, "if an archipelagic State does not designate sea lanes or air routes, the right of archipelagic sea lanes passage may be exercised through the routes normally used for international navigation". The Situba passage is a deep channel about 18 miles wide connecting the Sulu Sea with the Sulawesi Sea. It is one of the eight most important straits lying wholly within Philippine archipelagic waters. It is an important transit route for international trade between the Pacific and the Indian Ocean. Thus the Situba passage is a route "normally used for international navigation" that all vessels can sail through as an archipelagic sea lanes passage, including Chinese naval vessels.


Some also accused China of having a "double standard" since it requires foreign vessels to have prior authorization in its territorial waters. But the accusation makes no sense. China does require foreign warships to apply for passage in its territorial sea according to the 1992 Law of Territorial Sea and Contiguous Zone. It did not notify the Philippine government simply because the Philippine government has made no such requirement. The Philippines has no domestic law requiring foreign vessels to get such clearance before passing through the waters within its archipelagic baseline.


In 2011, the Supreme Court stated that the sovereignty of Philippines over the waters within the archipelagic baselines is subject to the rights of innocent passage and archipelagic sea lanes passage as provided for under international law. However, the Philippine legislation never requires clearance or prior notification of foreign vessels passing through the waters within its baselines. China respects Philippine domestic legislation and will notify relevant authorization if there's such a legal requirement.


Despite the unresolved territorial and maritime delimitation dispute, political relations between China and the Philippines have improved dramatically in the past three years. Stable top-level relations also help promote maritime cooperation and facilitate the expansion of economic deals. China has been the Philippines' largest trade partner since 2016 and its biggest investor since last year. The two countries established the Bilateral Consultation Mechanism and already held four conferences so far. Coastguard cooperation is also on schedule.


The relationship between China and the Philippines is now on a healthy track and is perhaps as good as it has ever been. There is no reason for China to send military vessels to intentionally pose a security threat as it would damage bilateral relations. The passage of Chinese ships through Sibutu passage should not be a problem or concern. President Rodrigo Duterte is expected to make his fifth trip to China on Aug 28. It is better to save time to discuss real significant issues such as how to achieve a Code of Conduct for the South China Sea at the earliest date and resolve the long-standing disputes in a peaceful way.

Yan Yan is Director of the Research Center of Oceans Law and Policy at the National Institute for South China Sea Studies, Haikou, China.

Link: http://www.chinadaily.com.cn/global/2019-08/27/content_37505774.htm 

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