Dr. Yan YAN, Director of Research Center for Oceans Law and Policy, National Institute of South China Sea Studies (NISCSS)
On Aug 20th, Senate Christopher Lawrence Go said the Philippine government would require vessels from other countries to notify Philippine authorities about their impending passage through "territorial waters" and get clearance from proper government authority well in advance. It is a response to the reported Chinese warships passed through the Situba Strait in July and August. Philippine Foreign Secretary Teodoro Locsin Jr also said he filed a diplomatic protest against China over the issue. Philippine presidential spokesman Salvador Panelo said it is a violation of the United Nation Convention on the Law of the Sea (UNCLOS) since they passed through the Philippine's "exclusive economic zone."
It seems that the PH government officials are confused about the status of waters around the Sibutu passage--whether they are territorial sea or exclusive economic zone or archipelagic waters. Moreover, there is no domestic law requiring foreign vessels to get such clearance before passing through the waters within its archipelagic baseline.
Philippines Archipelagic Waters Claim Unclear
Consisting of more than 7000 islands and islets located around 600 miles off the south-eastern 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 PH 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 (IMO) on the designation of archipelagic sea lanes passage.
Nothing Illegal about China's Vessels Navigate through Sibutu 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 with an amount of around 15000 annual ship passage. Thus the Situba passage is a route "normally used for international navigation" that all the vessels can sail through as an archipelagic sea lanes passage, including the Chinese warships.
Some also accused China of being "double standard" since it requires foreign vessels to have prior authorization in its territorial sea. 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 Phillippines government simply because there is no requirement from the government.
In 2011, the Supreme Court stated that Philippines sovereignty 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 PH legislation never requires clearance or prior notification of foreign vessels passing through the waters within its baseline. China respects PH domestic legislation and will notify relevant authorization if there's such a legal requirement.
Navigational Issues Should not be an Obstacle to China-Philippines Relationship
Despite the unresolved territorial and maritime delimitation dispute, political relation between China and the Philippines has improved dramatically in the past three years. Stable top-level relation also helps 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, coast guard cooperation are also on the schedule.
The China-Philippines relationship 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 post a security threat to damage bilateral relations intentionally. The passage of Chinese ships through Sibutu passage should not be a problem to concern. President Duterte is expected to make his fifth trip to China at the end of August. It is better to save time to discuss real significant issues such as how to achieve a Code of Conduct in the near future or resolve the long-standing disputes in a peaceful way.