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"President Duterte may as well raise the Sibutu passage issue with his Chinese counterpart."

A few days ago, before President Rodrigo Duterte left for his fifth trip to China, Senator Bong Go, in reaction to several instances of Chinese vessels including warships passing through Sibutu Channel which is well within the Philippine territory, 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. 

Almost at the same time, Foreign Affairs Secretary Teddyboy Locsin said he had filed a diplomatic protest against China over the issue. 

Palace spokesman Salvador Panelo readily agreed with the two saying the reported Chinese vessels passing through Philippine waters without clearance form the Philippine government is a violation of the United Nations Convention on the Law of the Sea since they passed through our country’s “exclusive economic zone.”

However, the pronouncement from the three government officials are being contested by China claiming their vessels passage in Sibutu are “well-grounded in law.”

 In a statement coming from the Chinese Embassy, officials, quoting Dr. Yan Yan, Director of Research Center for Oceans Law and Policy, National Institute of South China Sea Studies, say that not only the three 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. More importantly, there is no Philippine law yet requiring foreign vessels to get such clearance before passing through the waters within its archipelagic baseline.

Meanwhile, the Supreme Court in 2011 stated that Philippines sovereignty over the waters within the archipelagic baselines is subject to the rights of innocent passage and archipelagic sea lane passage as provided for under international law. 

However, the Philippines has never enacted a law requiring clearance or prior notification of foreign vessels passing through the waters within its baseline. 

 China, Yan says, will respect Philippine laws and will notify relevant authorization if there’s such a legal requirement.

 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. 

And while the 1987 Philippine Constitution says there is no difference between internal waters and archipelagic waters, the UNCLOS distinguishes between the two. In 2009, the Philippines updated its archipelagic baselines through Republic Act 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.

But even then, Yan noted, it did 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 lane passage, it has so far not submitted a proposal to the International Maritime Organization on the designation of archipelagic sea lane passage.

Now, the interesting part. According to Yan, Article 53 paragraph 12 of the UNCLOS states that “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 Sibutu 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 around 15,000 annual ship passage. 

Thus, Yan says the Sibutu 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. 

In fact, Yan said China does require foreign warships to apply for passage in its territorial sea according to the 1992 Law of Territorial Sea and Contiguous Zone and that if does not have to notify the Philippine government simply because there is no requirement from the government. 

Early this month, President Duterte said he would bring the issue of the PCA ruling on the disputed territories with Chinese President Xi Jinping. While the issue of the Chinese vessels’ Sibutu passage maybe outside the scope of the PCA ruling, it maybe a good idea to bring the issue as well as both sides maybe having a different interpretation of the matter.

But if indeed we have no law yet on archipelagic sea lane passage, nor have we defined yet our archipelagic sea lane before the IMO, the three aforementioned officials may have been crying wolf or crying foul for a non-existing offense. And with the political relation between China and the Philippines dramatically improving in the past three years, they may have to cease right away. 

There seems to be no basis in confronting the Philippines’ largest trade partner since 2016 and its biggest investor since last year. 

What we need now, as Yan suggests, is to work towards achieving a Code of Conduct in the near future or resolve the long-standing disputes in a peaceful way.