August 24, 2019 at 12:10 am
"The noise may be intended to embarrass the President."
After the accidental ramming of our fishing boat by an unidentified Chinese vessel near the disputed Scarborough Shoal, which saw the local media howling like toddlers in decrying the incident as “bullying” and Leni Robredo cashing in for media mileage, now here we go again protesting the passage of Chinese warships, led by China’s aircraft carrier CV-16 Liaoning, claiming to have violated our territorial waters by passing through the Sibutu Strait and Balabac Island without prior notification.
According to Western Military Command Chief, Lt. Gen. Carlito Sobejana, there have been 13 instances of Chinese warships passing through the narrow strait since June 2019, and in all instances, the Chinese warships turned off their automatic identification system and could not be contacted though radio.
As described by National Security Adviser Hermogenes Esperon, there has lately been a “swarming” of Chinese vessels in and around the islands occupied by the Philippines in the South China Sea. Defense Secretary Delfin Lorenzana then suggested to President Rodrigo Duterte to take up the matter with President Xi Jinping during his visit to China.
For the clarification of many, Sibuto Strait is a narrow passageway with an 29-kilometer distance separating the Philippine island of Tawi Tawi and Borneo. The Washington Treaty on November 7, 1900 delineated Cagayan, Sulu and Sibutu as the boundary of the archipelago acquired by the US from Spain. The Sibuto Strait is recognized by the United Nations Convention on the Law of the Sea as an international waterway where ships of all flags, through customary international law, enjoy the right of innocent passage.
In the West’s Encyclopedia of American Law, it defines a strait as a narrow body of water connecting two areas of the high seas, and is used in international navigation. There shall be no suspension or stoppage of foreign ships passing through the strait. Because of the acuteness of the international waterway, vessels passing though it cannot avoid “trespassing” or “violating” the territorial waters of the adjacent state which, under international law, extends up to 12 miles. As customary practice, passing vessels are allowed with certain limitations that they cannot suspend/stop from navigating while within the passageway.
The fact that some straits have become necessity to international shipping, commerce and navigation, international law conventions “internationalized” them, and that includes the Sibutu Strait. Permission or clearance for passage from the adjacent or host states is no longer necessary. The internationalization of the strait by customary practice or through convention such as our ratification of the UNCLOS has somewhat made the host country or adjacent state to partially lost their right to claim full jurisdiction on those waters adjacent to their shoreline like preventing those vessels passing through, just as vessels can assert their right to innocent passage.
The passage of Chinese warships through the Sibutu Strait and Balabac Island may have traversed our territorial waters. Even that, there is no need for us to enact a law that would declare the Strait an international waterway as suggested by Supreme Court Associate Justice Antonio Carpio. Such proposal would only make us ridiculous, more so if the intent of the law is to selectively allow and/or prevent other vessels from passing through it. Our ratification of the UNCLOS is more than enough to commit us to the free passage of navigation under international law.
It was rather exaggerated for Esperon to characterize the number of Chinese vessels in the South China Sea as “swarming.” Maybe he has his in mind bees attacking us from all sides. The Chinese vessels simply navigated through the strait which we uncannily are making a loud noise of protestations. Other warships—US, Australia, the UK and Japanese navieshave been passing through it but we never made an issue of their passage, for understandably, they are our allies and have not violated the conditions regarding the right of innocent passage.
It would be undiplomatic for President Duterte to take up the matter of Chinese warships with China’s President Xi Jinping.
First, the subject matter of passage is trivial that China did not even consider that an incident, except of course for those anti-Chinese hecklers. Second, China would be appalled at our move much that Chinese vessels complied the rules concerning the passage of vessels in straits enjoying the right of innocent passage. Third, clearance and permission from the host state is not required under the UNCLOS. Fourth, to insist on our new regulation would unduly strain our relations with China to the delight of the US.
In fact, the US Navy has been crisscrossing the Philippine archipelago anytime of the year, ignoring our archipelagic doctrine, plying through the great bodies of territorial waters separating the islands of Palawan, Negros and Mindanao, and using as their passageway to enter the South China Sea though the narrow channel separating Sorsogon and Samar in San Bernardino, and the Bashi Channel that separates Taiwan and the Philippines.
Moreover, we cannot even compel the US navy that before entering Philippine territory, to declare that its warships do not carry any nuclear weapons pursuant to Section 5, Article II of the Constitution. Rather, the US merely refuses to confirm or deny such query from the Philippine government.
According to Presidential Spokesman Salvador Panelo, “Beginning today, all foreign vessels passing through our territorial waters must notify and get clearance from the proper government authority. “Either we get compliance in a friendly manner or we enforce it in an unfriendly manner.” But did it not come to his mind as lawyer that we do not have that right to demand compliance under the UNCLOS convention? Panelo even failed to anticipate that diplomatic protocol demand that vessels passing through the strait should observe the rules and limitations, and not for the sovereign state to seek the permission of the host state. This is assumed because countries that geographically have narrow straits and is used by countries for international navigation as members of UNCLOS know the rules upon which passing vessels must observe.
The howl made by Lorenzana, Carpio and Batongbacal are misplaced. Some suspect that their noise is intended to embarrass the President. Batongbacal as head of the UP Institute for Maritime Affairs should know what he is talking about. Vessels passing through an international waterway need not seek permission from the host state or much would more for states to give its consent because their adherence and ratification of the convention already amounts to that. In fact, we can even say that it should be the US that should be prevented from passing through the Sibuto Strait for the simple logic that it has refused to ratify the UNCLOS, and that means it rejects all the provisions regarding the use of straits and inland navigable rivers.