Maritime Studies
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Maritime Studies |
|
Jay L. Batongbacal[2]
At the 9th Meeting of the Maritime Working Group of the Council for Security Cooperation in the Asia Pacific (CSCAP) held in Beijing in November 2000, the participants agreed to a discussion of issues of concern for the regional countries regarding the implementation of the Law of the Sea. Such a discussion should enable regional countries to reach a ‘common understanding’ of the issues that generate their respective national policies and positions on the sea, and which may be the cause of disagreements or disputes upon coming into contact with other countries’ policies and positions. Through knowledge of each other’s perspectives, the parties may be better able to address the real concerns and issues behind their disagreements.
This paper takes the initiative in beginning what is hoped to be a series of discussions between regional countries, involving a clarification of the national policies and interests that affect their basic positions with respect to the 1982 UN Convention on the Law of the Sea. Revolving around the archipelagic state provisions in particular, the paper provides an overview of the basic positions taken by the Philippines during the negotiations of the Convention, attempts to draw out the rationale for such positions, and identifies continuing issues that are faced by the country in light of the resulting text of Part IV of the Convention. Rather than seek to persuade the regional countries of the correctness of the Philippine policies and positions, the paper highlights the legitimate causes of concern behind them. It is hoped that through the understanding of these causes, the Philippines and the regional countries will be able to come closer to reaching common ground in their future relations concerning the implementation of the Convention.
The basic document that definitively encapsulates the fundamental positions of the Philippines regarding the archipelagic status of the country is the original Note Verbale submitted by the Secretary of Foreign Affairs to the Secretary-General of the United Nations in response to the latter’s inquiry about the country’s views on the width of the territorial sea.[3] The Note Verbale states:
All the waters around, between and connecting the different islands belonging to the Philippine Archipelago, irrespective of their width or dimension, are necessary appurtenances of its land territory, forming an integral part of the national or inland waters, subject to the exclusive sovereignty of the Philippines. All water areas embraced within the lines described in the Treaty of Paris of
10 December 1898, the Treaty concluded at Washington, D.C. between the United States and the United Kingdom of 2 January 1930, and the Convention of 6 July 1932 between the United States and Great Britain, as reproduced in section 6 of Commonwealth Act No. 4003 and article I of the Philippine Constitution, are considered as maritime territorial waters of the Philippines for the purposes of protection of its fishing rights, conservation of its fishery resources, enforcement of its revenue and anti-smuggling laws, defense and security, and protection of such other interests as the Philippines may deem vital to its national welfare and security, without prejudice to the exercise by friendly foreign vessels of the right of innocent passage over those waters. All natural deposits or occurrences of petroleum or natural gas in public and/or private lands within the territorial waters or on the continental shelf, or its analogue in an archipelago, seaward from the shores of the Philippines which are not within the territories of other countries, belong inalienably and im-prescriptibly to the Philippines, subject to the right of innocent passage of ships of friendly foreign states over those waters[4]
It was through the foregoing Note Verbale that the Philippines first propounded the archi-pelagic concept on the basis of the unity of land and water domains historically regarded and actually functioning as one political entity. The fundamental position of the Philippines on international navigation within the fluvial component of that unified entity, or in ‘archipelagic waters’, was likewise emphasized for the first time.
International law up to that time had developed a legal regime that was directly applicable only to countries with large continental landmasses, and at most considered only situations of small islands at the fringes of such landmass. After the Anglo-Norwegian Fisheries Case was decided by the ICJ in 1951, it was suggested by scholars and some governments that the straight baseline method used by Norway in connecting the outermost islands of its coast should also apply to ‘mid-ocean archipelagos’, i.e. archi-pelagos formed by several island masses instead of a continental coastal landmass and fringing islands.[5] This opinion was circulated in the 1958 Conference on the Territorial Sea and Contiguous Zone, and the Philippines did in fact attempt to inject this concept as a point for discussion in the First and Second UN Conferences on the Law of the Sea (UNCLOS I and II), but was forced to withdraw its proposals due to lack of support, as well as opposition from the maritime powers.
Faced with the lack of established international law norms, the Philippines merged the concept of the straight baseline method with its own claim to territorial waters by historic title, through the enactment in 1961 of Republic Act No. 3046, entitled An Act to Define the Baselines of the Territorial Sea of the Philippines.[6] Among the declared intentions of the Act’s proponent was to clarify the Philippines’ position on navigational issues within what it considered to be territorial waters, as stated in the Explanatory Note:
Part of these waters are inland or internal waters and part comprise the territorial sea of the Philippines. The waters around, between and connecting the various islands of the archipelago are inland or internal waters. The waters beyond the outermost islands of the archipelago, up to the limits set forth in the foregoing treaties, comprise the territorial sea of the Philippines. But what is the legal status of the Philippine waters in principle, the exact delimitation between the inland or internal waters, on one hand, and the territorial sea, on the other, has not been officially defined by specific description.
…
The purpose of this bill is to clarify the baselines of the Philippine territorial sea by specific description. This is important so that those concerned may know which part of our waters is inland waters and which part is territorial sea meet.(sic) Under accepted rules of international law, foreign merchant vessels have the right of innocent passage in the territorial sea, but they do not have such right in inland or internal waters, of a coastal state. Furthermore, there may be different rules applicable to vessels for preventing collisions at sea when they are in the territorial sea and when they are in internal waters.[7]
Thus, at the deliberations on Rep. Act No. 3046, the proponent explained that –
…While we have established the principle that the waters between our various islands are internal waters, and the waters beyond the outermost islands up to the treaty limits constitute the territorial sea of the Philippines, this bill would clarify just where the inland waters terminate and where the territorial sea begins...
…
All waters within those baselines are internal waters subject to the exclusive sovereignty of the Philippines just like its land territory. All the waters outside the baselines and until the treaty limits comprise our territorial sea, over which foreign merchant vessels would have the right of innocent passage. With the technical description provided in this bill, foreign merchant vessels would know at what time they would be violating Philippine territory and sovereignty, that is, the moment they pass these baselines and penetrate into inland waters without permission from the Philippine government.[8]
It can be seen that this was an attempt to harmonize the domestic conception with the international framework of internal and territorial waters. However, the enactment of Rep. Act No. 3046 led to the Philippines claiming internal waters, as well as a territorial sea of widely varying widths from the coasts. This position contradicted the then-prevailing opinion that territorial seas were defined by reference to a specific distance from the coastline. Despite its unique nature, however, it was clear that what was intended was for navigation between islands of the archipelago to be subjected to the stricter regime of internal waters. Archipelagic waters were equated with internal waters, which in the experience of the western world comprised only rivers, bays, lakes, and harbors.
At the Third UN Conference on the Law of the Sea (UNCLOS III), the Philippines therefore consistently emphasized that the right of innocent passage in archipelagic waters could not be the same as it was in the territorial sea; and an archipelagic state should exercise more authority over its archipelagic waters than a coastal state exercises over its territorial sea.[9] It presented its draft articles on the archipelagic state, together with Fiji, Indonesia, and Mauritius. According to this formulation, innocent passage existed through archipelagic waters, but an archipelagic state may designate sea lanes suitable for the continuous and expeditious passage of ships through its archipelagic waters and may restrict the innocent passage by foreign ships through those waters to those sea lanes. Substitution of such sea lanes were allowed, as well as the prescription of traffic separation schemes, and the archipelagic state was allowed to make laws and regulations relating to such passage through sea lanes and to traffic separation schemes.[10] Also provided were specific articles for the suspension of innocent passage of warships through the sea lanes, as well as prohibition of passage of such warships, in cases of non-compliance with the laws and regulations.[11] In harmony with existing law on the rights of the coastal state in the territorial sea, an archipelagic state was prevented from suspending the right of innocent passage of foreign ships through the designated sea lanes unless such suspension was essential for the protection of its security, but only after giving due publicity thereto and substituting other sea lanes for those through which passage was suspended.[12]
As succinctly summarized by the Philippine delegate at UNCLOS III, the basic premise of the archipelagic concept as proposed was the idea that the Philippines
...was more than a group of islands, its land, waters, and people formed an intrinsic geographical, economic, and political entity, and historically has been recognized as such. That basic consideration of unity made it necessary that there should be international recognition of the right of an archipelagic state to draw straight baselines connecting the outermost points of its outermost islands and drying reefs, baselines from which the extent of the territorial sea of the archipelagic state was or might be determined. The waters within the baselines, regardless of their depth and distance from the coast, together with the corresponding sea-bed, subsoil and superjacent airspace, were subject to the sovereignty and exclusive jurisdiction of the archipelagic state. Sovereignty and exclusive jurisdiction over those waters were vital to archipelagic states, not only to their economy but also to their national security and territorial integrity.[13]
This was not, however, without consideration for international navigation. The Philippines recognized the right of foreign ships to navigate through its waters under innocent passage, though they could be restricted to designated sea lanes. To assure the continuity of navigation in the interim, if the archipelagic state did not designate sea lanes, then, the entire archipelagic waters would be open to innocent passage of ships.[14]
As it turned out, the Philippines found itself alone in arguing for as restrictive a regime as originally advocated, and had to compromise by bringing archipelagic waters closer to the concept of territorial waters rather than internal waters, subjecting the same to the right of innocent passage. Likewise, its proposal for the designation of sea lanes to which innocent passage was to be restricted was expanded into the concept of archipelagic sea lanes passage. What was not acceptable, however, was to allow the archipelago to be divided by high seas or by a freedom of navigation regime that allowed foreign ships unrestricted and unregulated access through archipelagic waters between the Philippine Islands. Thus, at the 1974 Caracas session, the Philippine delegation stressed their willingness to consider any reasonable proposal for the regime of archipelagos as long as the essence of the archipelagic concept was maintained. That essence was ‘the dominion and sovereignty of the archipelagic state within its baselines, which were so drawn as to preserve the territorial integrity of the archipelago by the inseparable unity of the land and water domain,’ and the protection of archipelagic waters from foreign intrusion, which was vital to the Philippines and its national security.[15]
When the draft articles in the Interim Negotiating Text of the Convention were circulated, the Philippines found them greatly divergent from the original proposal that gave restrictive powers to an archipelagic state. The Philippines in 1978 proposed a number of amendments that would have prohibited archipelagic sea lanes passage and overflight of archipelagic sea lanes; severely restricted the innocent passage of warships, nuclear powered ships, and ships carrying nuclear or dangerous materials; eliminated the role of an international organization in the designation of the sea lanes; and deleted entirely the cross-reference to the regime on transit passage through straits.[16] These amendments were not looked upon favorably. The United States bluntly stated that acceptance of the archipelagic state doctrine in international law was conditioned on the recognition of the right of archipelagic sea lanes passage, among the other provisions of the draft convention.[17] This view was implicitly shared by practically all the other states, including those who geographically qualified for archipelagic state status, and at the Eleventh Session in 1982, all other states generally expressed satisfaction with the text of the draft Convention.[18] None of the other sponsors of the archipelagic regime supported the Philippines’ proposed amendments.[19] Eventually the draft text was approved without changes.
In order to preserve for the record what remained of its views, the Philippines signed the Convention only after delivering the following Declaration:
The government of the Republic of the Philippines hereby manifests that in signing the 1982 United Nations Convention on the Law of the Sea, it does so with the understandings embodied in this declaration, made under the provisions of Article 310 of the Convention, to wit:
The signing of the Convention by the Government of the Republic of the Philippines shall not in any manner impair or prejudice the sovereign rights of the Republic of the Philippines under and arising from the Constitution of the Philippines;
Such signing shall not in any manner affect the sovereign rights of the Republic of the Philippines as successor of the United States of America, under and arising out of the Treaty of Paris between Spain and the United States of America of December 10, 1898, and the Treaty of Washington between the United States of America and Great Britain of January 2, 1930;
Such signing shall not diminish or in any manner affect the rights and obligations of the contracting parties under the Mutual Defense Treaty between the Philippines and the United States of America of August 30, 1951, and its related interpretative instrument; nor those under any other pertinent bilateral or multilateral treaty of agreement to which the Philippines is a party;
Such signing shall not in any manner impair or prejudice the sovereignty of the Republic of the Philippines over any territory over which it exercises sovereign authority, such as the Kalayaan Islands, and the waters appurtenant thereto;
The Convention shall not be construed as amending in any manner any pertinent laws and Presidential Decrees or Proclamations of the Republic of the Philippines. The Government of the Republic of the Philippines maintains and reserves the right and authority to make any amendments to such laws, decrees or proclamations pursuant to the provisions of the Philippine Constitution;
The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair the sovereignty of the Philippines as an archipelagic state over the sea lanes and do not deprive it of authority to enact legislation to protect its sovereignty independence and security;
The concept of archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines, and removes straits connecting these waters with the economic zone or high sea from the rights of foreign vessels to transit passage for international navigation;
The agreement of the Republic of the Philippines to the submission for peaceful resolution, under any of the procedures provided in the Convention, of disputes under article 298 shall not be considered as a derogation of Philippine sovereignty.[20]
On hindsight, the declaration may also be seen as an essential requirement for a domestic audience: the Philippine legislature which had to ratify the Convention in order for it to become binding on the country. The record of the deliberations on the ratification of the Convention evinced a clear need on the part of the Philippine Delegation to assure the Philippine public, through the legislature, that the Convention was consistent with the country’s long term interests, and that any perceived ‘losses’ were actually minimal in the broad scheme of things. Thus, in ratifying the Convention, the national legislature made it a condition that the ratification was subject to the Declaration of the Philippine Delegation:
Resolved by the Batasang Pambansa, To concur, as it hereby concurs, in the United Nations Convention on the Law of the Sea entered into and signed by the Representative of the Republic of the Philippines on December 10, 1982 at Montego Bay, Jamaica, with the understandings embodied in the Declaration filed on behalf of the Republic of the Philippines by the head of the Philippine delegation when he signed the convention, copy of which is attached as ‘Annex A’.[21]
A number of states submitted protests to this Declaration because they viewed it to be a form of reservation which was prohibited by the Convention; in the case of littoral states in the Southeast Asian region there was an added impetus of protesting the Philippine claim to the Kalayaan Island Group. However, as explained by the chairman of the Philippine delegation to the country’s legislature during deliberations on ratification of the Convention, the purpose of submitting the declaration was not to make reservations, but:
And so far as the Philippines is concerned, we took the position that we filed this declaration to give notice to other countries signing the Declaration that we have claims which may not be completely in harmony with the provisions of the Convention but which we set forth as interpretative to the Convention in relation to our domestic legislation. Now, if other countries should accept this, then it would be binding between the Philippines and that other country as some kind of a bilateral understanding or agreement between them qualifying as between those parties the terms of the Convention but not with respect to other parties…
…if this Declaration should be questioned by any other State as being contrary to the terms of the Convention, then that raises a legal question, and if it is found by the appropriate tribunal that it is contrary to the Convention or modifies the Convention, then, of course, that tribunal would naturally declare the Declaration as not binding on other states. But if there are two states that will recognize it and agree with it, those states evidently will not be able to question the validity of the Declaration because the Declaration plus their agreement amount already to a bilateral agreement on their part modifying or qualifying the Convention as to the two of them.[22]
This was further clarified in 1988, when the Philippines responded to a similar protest of Australia by declaring:
The Philippine Government, therefore, wishes to assure the Australian Government and the States Parties to the Convention that the Philippines will abide by the provisions of the said Convention.[23]
In spite of the declaration in 1988, though, the Philippines still faces the myriad problems of implementation of the Convention in light of the actual characteristics and conditions of the archipelago. While the legal and historical record is relatively easy to appreciate, the practical aspects and factors which actually affect the implementation of the policy are relatively easier to access.
The physical environment of an archipelago is an extremely complex system, even more complex than the coastal zone of continental states which has been the subject of much scientific research for the past several decades. The geographic fragmentation of islands and enclosed waters creates extremely unique and disparate conditions in so many areas, due to the very diverse combinations of environmental factors that can exist in any given area. Physically, the distribution of natural resources such as minerals is uneven, and there is a wide range of resources that can be found in different islands of the archipelago.
More importantly, islands are unique ecosystems in themselves; research on islands has been the basis of much of our understanding of ecological and biological processes such as evolution and speciation, competition and character displacement, and island bio-geography, which were all shaped by studies on islands.[24] High biodiversity and endemicity are most likely to occur on islands.[25] Indeed, the Philippines ranks sixth among the biodiversity ‘hotspots’ of the world (second in Southeast Asia), with about 40% of vertebrate species being unique to certain islands.[26] There is an equally high endemicity in fish and in-vertebrates in lakes and river systems,[27] while the biodiversity profile of the open seas is still unknown.
The islands create enclosed and semi-enclosed spaces of marine waters, which tend to host unique conditions and therefore also make it likely that their environments are even more biologically diverse. The marine waters serve as links between the islands in terms of chemical and biological transfers, in addition to the physical effects of flowing waters. For example, the climate patterns on islands are determined more by the conditions of the surrounding sea than by any of their surface features.[28] Thus, the land and water components of an archipelago are also highly interactive.
But because islands and enclosed waters also represent limited geographic space, each unique area can be considered as a very fragile environment easily susceptible to changes in environmental conditions. The carrying capacity for various activities is much more limited, and terrestrial flora and fauna are unable to expand due to the lack of land area. Marine flora and fauna, on the other hand, are even more vulnerable to changes in the delicate ecological balance that is commonly found in marine ecosystems.
Overlaid on the physical environment described above is Philippine society, which has acquired equally distinct ‘archipelagic’ characteristics. The Filipino population is about 76 million, but the total land area of the country is only 300,000 square kilometers. This means a population density averaging about 280 people per square kilometer. Of 7,107 islands, only about 470, or about six per cent (6%) are bigger than 1.6 square kilometers in area. About sixty per cent (60%) of the protein intake of Filipinos comes from fish and other aquatic resources directly taken from the sea not only by commercial fishing vessels, but also by artisanal fishermen.[29]
The Philippines has very diverse ethno-linguistic groups, with at least five major languages and over twenty dialects. Although predominantly Roman Catholic, a wide variety of other religions also thrive within the community. Social fragmentation is reflected not only in the wide disparity between socio-economic classes, but also in the diverse social issues carried by a range of political groups and communities. The decentralization of govern-ment in the post-Marcos era has particularly strengthened the appeal of local governance mechanisms, and today the legal system promotes extensive local participation in governance through consultations and insti-tutional bodies with either recommendatory or advisory functions.
Given a complex and fragmented geographic environment and a diverse and scattered social structure, it is inevitable for a developing archipelagic state to face a host of problems arising uniquely from its marine component.
The marine component of the archipelago acts as both a barrier and link. Water enables easy access to all the islands for both man and animal, whether of domestic or foreign origin. Around and within the perimeters of the archipelago, a vessel may be able to access any of the over 600 government ports and 340 private ports of entry[30] that form part of the domestic distribution chain for goods and people across the nation.
This situation makes it very difficult to implement the traditional control valves of government for interaction with foreign states. Customs, immigration, quarantine, defense and security procedures are usually focused around a few distinct ports of call; but in an archipelagic context these are practically impossible to distribute effectively without a means for limiting the terms of access into the archipelagic waters. Thus, smuggling and illegal migration have been seen as problems for the archipelago for years, especially in the areas adjacent to other states.
The intervening waters also act as a barrier to management efforts on a national scale. The logistical requirements for any system of managing the archipelago are compounded by the need to move through a mixed environ-mental setting of both land and sea. The offices of government are divided into 13 administrative regions spread among the islands, and within each island each agency can essentially work autonomously of the central office.
The terrestrial boundaries of islands effectively concentrate land-based environmental impacts within their limits, while the islands themselves also create enclosures around marine environ-mental conditions. This containment effect magnifies the actual and potential impacts of environmental conditions, and changes to those conditions, upon the fragile and sensitive human and non-human habitats in the archi-pelago. Water can transmit or convey adverse impacts like pollution easily and rapidly across large distances, and enclosures increase the possibility that effects may accumulate over time. Such impacts are immediately and directly felt by the local population, most of whom reside in the coastal areas of the archipelago. The island setting limits the mobility of and available space for these populations, and thus they must bear the brunt of any adverse ecological changes.
The archipelagic waters have always been viewed as highways of communication and transportation between the islands that are essential to bringing the disparate people and local territories together under one state.[31] Thus the preservation of these waters as extensions of the land territory and protection from foreign intrusion has been equated with the preservation of national security. To the Filipino mindset, the marine waters are no different from the land, and therefore the management of those waters should be closer to the internal waters regime than to the territorial seas regime.
The local use of waters is very, very extensive for fisheries and transportation. More than a million passenger or cargo boats and artisanal fishing boats take to sea on a daily basis,[32] most of which are small wooden-hulled vessels. Up to ninety-eight per cent (98%) of domestic trade in goods is carried on by seaborne transportation, not only through large cargo vessels, but through the small and humble banca (outrigger boats) that carry goods and people between islands, villages, and municipalities. People move across the islands unprotected in open pumpboats, which are able to reach practically any point of the archipelago without need for very expensive port infrastructure. Coastal villages are directly dependent on the use of the marine waters for subsistence, throughout the year. Only the typhoon seasons prevent our artisanal fishers from daily seeking a major portion of their food and livelihood from the ocean.
Aside from continuous use, much of the archipelagic waters are also perceived as internal waters due to their proximity to the coastal settlement areas. Visual perceptions are an important element in attitudes about the sea, and the fact that most of the archipelagic waters are always directly within sight of a large segment of the population allows them to be seen as integral parts of the land territory. Any activities within the visual field of the people, especially those undertaken by foreign vessels, are naturally expected to be subject to the government’s full control.
A number of maritime threats plague the marine environment. Geographically, the Philippines is located in the typhoon belt, which makes it prone to maritime accidents. Vessel-source pollution incidents occur frequently, many of which are classified as ‘mystery spills’ that are likely to have been due to operational discharges.[33] Destructive fishing methods such as dynamite and cyanide fishing are a major problem, and the remaining coral ecosystems are under continuing threat. Mangrove forests have been rapidly depleted in the past decades, while foreign fishing boats are regularly reported to have been found encroaching not only in the islands in the South China Sea, but also within the territorial sea of the main archipelago. Incidents of piracy, smuggling, and drug trafficking are also regularly faced by law enforcement agencies.[34]
Since 1987, both the legislature and the executive have enacted a number of key policies that directly influence the Philippines’ treatment of international marine policy issues.
On October 20, 1990, Republic Act No. 6969, otherwise known as the Toxic Substances and Hazardous and Nuclear Wastes Control Act of 1990, became law. Among others things, the Act makes it a criminal offense to cause or even allow the transit of any amount of toxic, hazardous, or nuclear wastes through Philippine waters by sea or air transportation.[35] Legally, therefore, the government is mandated to bar certain types of vessels and aircraft from entering maritime jurisdictional waters.
On June 1, 1992, Republic Act No. 7586, or The National Integrated Protected Areas System Act, provided a revised framework for environmental protection in accord with the Bio-diversity Convention. It permitted the government to establish protected seascapes[36] based on certain criteria and subject to new procedures, and this system allows such protected areas to be created practically anywhere within the archipelagic waters and Exclusive Economic Zone.
On May 18, 1995, Executive Order No. 247 established a regulatory framework for the prospecting of biological and genetic resources, by-products or derivatives, for scientific and commercial purposes. This framework is equally applicable to marine biological and genetic resources, and therefore the inter-national regime established by the Law of the Sea for marine scientific research must be implemented with due consideration for this framework. Notable in the regulatory frame-work is the requirement for prior informed consent by local indigenous or concerned communities before bio-prospecting may be undertaken. While it is likely that this framework will be of direct importance only with respect to research within nearshore areas of archipelagic waters, it adds further reason for a watchful eye on the presence of foreign science vessels within archipelagic waters.
On February 25, 1998, Republic Act No. 8550, or the Philippine Fisheries Code of 1998, was enacted. Of particular importance in this new law was its extension and consolidation of ‘municipal waters’ into a 15-kilometer zone from the coastline placed under the direct juris-diction of coastal cities and municipalities.[37] This was the result of an evolutionary process dating back to the first Fisheries Act in 1932, which originally provided for municipal waters extending one marine league from the shoreline within which coastal cities and municipalities could levy a license tax on fishers. The current legal concept of municipal waters creates a locally-based and locally-controlled maritime zone that, when viewed on a map, may greatly compound the national government’s difficul-ties in maritime zone management when local interests clash with international maritime uses. One of the mandates of the local governments under the Fisheries Code is the setting aside of fifteen per cent (15%) of their municipal waters as fish refuges and sanctuaries, which are basically locally-based and maintained marine protected areas.
Another feature of Republic Act No. 8550 is its simple approach to foreign fishing vessels: any vessel found within the EEZ limits will be presumed prima facie to be engaged in fishing and subject to arrest and detention.[38] All law enforcement agencies, as well as the military, are deputized for fisheries law enforcement purposes, are therefore legally mandated to arrest and detain foreign fishing vessels upon sight within Philippine waters.
Finally, on July 30, 1999, Executive Order No. 132 was issued, strengthening the Cabinet Committee on Maritime and Ocean Affairs, and formally establishing its Technical Committee. Aside from the internal restructuring of the mechanism for inter-agency cooperation and coordination, the executive order introduced the ‘archipelagic perspective’ in governance, by stating that ‘in the pursuit of sustainable development, the interactions of the terrestrial and marine resource uses in an archipelagic setting shall be recognized, and used as the basis for encouraging all resource users to mutually support and reinforce each other.’[39] This simple statement actually sets the foun-dation for integrated management in consider-ation of the unique archipelagic characteristics and conditions described in the previous section.
Obviously, the primary interface between the archipelagic state and the rest of the international community is in the activities of foreign vessels within the archipelagic waters.
Innocent passage within archipelagic waters has been taken as granted even in the formative years of the archipelagic doctrine; the existence of the right does not present any greater or lesser threat to the exercise of Philippine sovereignty over archipelagic waters than before. The freedom of movement, at least of commercial vessels, through Philippine waters and straits has always been respected.[40] But, as with other nations regarding commercial vessel activities within their territorial seas, archi-pelagic states are concerned with issues of regulation of vessel-source pollution, regulation of access to ports and harbors, and opportunities for unauthorized resource use within archi-pelagic waters.
On vessel-source pollution, concern has been raised over the legal anomaly, attributed to a mistake in drafting, of the archipelagic state having less enforcement jurisdiction over foreign vessels in matters of pollution than a non-archipelagic state in its territorial sea, or the archipelagic state itself in territorial waters adjacent to archipelagic waters.[41] Apprehensions have been raised over whether this means that an archipelagic state has fewer rights and competencies over pollution matters within archipelagic waters. This question arises because regulation of vessel-source pollution is an over-riding concern in the management of maritime traffic.
However, the absence of explicit jurisdictional competencies in favor of the archipelagic state with respect to archipelagic waters is actually unnecessary, since the starting point for determining such competencies is the sover-eignty of the archipelagic state. The rights, duties and obligations under Part IV must be interpreted to elucidate the specific points that the archipelagic state concedes to the inter-national community; in exchange, everything else outside of the terms and conditions of Part IV must be deemed to have been recognized by the international community as being the prerogative of the archipelagic state, by virtue of the former’s recognition of sovereignty over archipelagic waters.
Environmental management imperatives require closer attention to be paid to maritime traffic within the fragile archipelagic waters. Marine environmental protection is especially recog-nized as a tool for ensuring the sustainability of the vital coastal habitats of fish and aquatic resources; and as previously noted, on the national level, the National Integrated Protected Areas System Act authorizes the government to establish protected seascapes, while on the local level, fish refuges and sanctuaries may be created.
Of greater concern is the interaction between foreign vessels and the inter-island domestic shipping activities that go on daily. On one hand, the danger of collision is quite real in the busy waters of the country. The worst maritime disaster in the world involved a collision between the M/V Doña Paz and M/T Vector, a foreign tanker off the coast of Mindoro in 1987; it resulted in the death of more than 4,340 people. In 1994, 140 people died when the MV Ferry Cebu City collided with a foreign oil tanker. In 1999, a Japan International Cooperation Agency study reported that the inter-island transport industry has caused the deaths of over 10,000 people and lost over US$1.3 billion in maritime disasters over the past 12 years.
In the past, these disasters have been attributed, among other reasons, to weaknesses in regulation, lack of adequate manpower for ensuring compliance with safety rules and regulations, absence of facilities and aids to navigation, and lack of an appropriate vessel traffic management system. The government continually attempts to improve the safety and efficiency record of the maritime industry, but the resource requirements for managing the enormous water area of the country is an extremely difficult challenge.
Illegal fishing and other unauthorized marine resource uses within archipelagic waters is another challenge. Although the Convention mandates the archipelagic state to give due regard to or recognize traditional fishing rights and other legitimate activities of an adjacent state within the archipelagic waters, such uses must be subject to bilateral agreements. To date, the Philippines has no such bilateral agreements on account of a constitutional provision reserving the use and enjoyment of the marine wealth of the country exclusively to Filipino citizens.[42] Reports of foreign vessel intrusion into Philippine waters have become more and more frequent, especially in the last decade; this led to the inclusion of a provision against poaching by foreign vessels in the Fisheries Code of 1998.[43]
Perhaps the most highly contentious issue is the passage of foreign military vessels within archipelagic waters. One reason why this issue is considered most significant is the fact that most archipelagic waters of the Philippines which are used by foreign vessels are also astride the major population centers of the country; and most archipelagic waters that have been used by foreign vessels are within the visual range of the coast. Thus, the local citizens are able to see clearly the kind of vessels that pass through the waters, and certainly unannounced naval vessels with their obvious weaponry will instantly cause concern among the people. The mere presence of military vessels, in the Philippine setting, serves a political purpose, especially in times of tensions or hostilities.
Submarine navigation in the ‘normal mode’ is a particular safety concern. The waters are teeming with the activities of fishing and cargo boats, fishing nets and gears of all types, and fish aggregating devices. These form hazards to shipping both on the surface and under the water. Any submarine navigating under water in archipelagic waters runs the risk of getting caught on the fishing nets or fish aggregating devices that are scattered by fisherfolk in deep water. And the recent Ehime Maru tragedy is not an isolated incident; the Washington Post reported on July 12, 1989 that from 1983 to 1989, the submarines of the US Navy have been involved in 42 collisions in various parts of the world. The likelihood of collision is even greater in Philippine waters, considering the concentration of commercial and fishing vessels.
Naturally, the main concern of the international community is implementation of the provisions of Part IV of the UNCLOS Convention relating to archipelagic sea-lanes passage. One of the most consistent points reiterated in Philippine statements is that this passage regime should not be considered as the same as transit passage under Part III. The distinction was emphasized by the Philippine Delegation when it explained its signature to the Convention, when the difference between the two regimes was described as being one of two major considerations that outweighed any disadvantages of the Convention, as follows:
The first of these is the recognition of the concept that an archipelago is an integrated unit in which the islands, waters and other natural features form an intrinsic geographical, economic and political entity. No longer will the various islands of an archipelago be regarded as separate units, each with its own individual maritime areas, and the waters between them distinct from the land territory.
The second, welcome basic consideration that gives us satisfaction is the recognition of the sovereignty of the archipelagic State over the archipelagic waters, the airspace above them, the sea-bed and subsoil below them and the resources contained therein. The text states explicitly in clear terms the only qualification to this sovereignty by providing that this sovereignty is to exercised ‘subject to this Part’ – referring to Part IV of the Convention, on ‘archipelagic States’. No qualification or limitation, therefore, outside of Part IV, on the exercise of sovereignty by the archipelagic States over the archipelagic waters would be valid. To make provisions outside of Part IV applicable to the archipelagic waters, the Convention expressly so provides in several of its parts.
One consequence of this is that the archipelagic waters are subject only to two kinds of passage by foreign ships, provided in Part IV of the Convention, namely, innocent passage and archipelagic sea lanes passage. This refers to all archipelagic waters or waters inside the archipelagic baselines, wherever located, whether around or between islands, and whatever their breadth or dimensions. Transit passage therefore, available to foreign ships in straits used for international navigation under Part III of the Convention, would not be available to them in these national or domestic straits entirely within the archipelagic baselines.
Such national straits could be subject to sea lanes passage if the archipelagic State so decided. Of course, the elements of sea lanes passage are practically the same as those of transit passage. But while transit passage is imposed by the Convention on the waters of the coastal States concerned, sea lanes passage can be exercised for foreign ships in archipelagic waters only in such lanes as the archipelagic State may designate and establish.
Sea lanes passage does not impair the sovereignty of the archipelagic State over the waters of the sea lanes. Incident to this sovereignty, the archipelagic State could validly enact legislation to ensure compliance of ships exercising sea lanes passage with the obligations and duties imposed by the Convention…[44]
The similarities between the regimes of archipelagic sea lanes passage and transit passage through straits used for international navigation are commonly cited by the maritime powers and user states to justify a more liberal perspective on navigation through archipelagic waters. However, the Philippines has maintained that the archipelagic sea lanes regime should be interpreted and implemented with particular deference to the archipelagic states’ standpoint.
Articles 49(1) and 49(2) of Part IV of the Convention clearly state that the archipelagic waters are subject to the sovereignty of the archipelagic state. Maintenance of sovereignty in all respects other than those expressly stated in Part IV presumes the primary jurisdiction of the archipelagic states even over waters subject to the right of archipelagic sea-lanes passage. The Convention does not speak of a distinct maritime zone within archipelagic waters equivalent to the width of the sea-lane; Art. 53 states only that the archipelagic state may determine, by means of axis lines, routes in which the special right of archipelagic sea-lanes passage shall be recognized. While distinct maritime zones connote at least a determinate two-dimensional space, axis lines indicate ideal trajectories. It is clear therefore that Part IV does not provide for the cession of strips of archipelagic waters to the control of the international community or any of its members; it is not a special corridor in the seas with distinct characteristics. The terms of the Convention at most describe a kind of easement in favor of transient foreign ships and aircraft for the purpose of expediting passage. As long as such ships and aircraft are permitted to exercise continuous and expeditious passage along these trajectories, the archipelagic state is entitled to take any other measures necessary to protect its sovereignty from passage which may be deemed prejudicial to the peace, good order, and security of the state.[45]
The express recognition and reinforcement of the archipelagic state’s sovereignty over archipelagic waters, including the sea lanes, and all resources contained within the archipelagic baselines is important also because without archipelagic waters, the waters beyond 12 nautical miles of the coastline may be only subject to the regimes of the contiguous zone and Exclusive Economic Zone. On account of the recognition of the archipelagic state’s sover-eignty over archipelagic waters, it is reasonable to assume that other than the concession of passage rights to foreign vessels under Part IV, all other powers and jurisdictions on matters other than those provided in Part IV remain within the exclusive competence of the archipelagic state. There can be no question, for example, as to the power of the archipelagic state to create marine protected areas within archipelagic waters, or exclusion areas, so long as they do not result in impediment to passage through the archipelagic waters. In case of doubt as to whether the archipelagic state is entitled to exercise a particular right or jurisdiction, the recognition of sovereignty of the archipelagic state over the waters places the rules of interpretation in favor of the archipelagic state.
Part IV speaks of a ‘right’ of navigation and overflight,[46] while Part III confers a ‘freedom’ of navigation and overflight.[47] This implies that the right of archipelagic sea-lanes passage is a presumed grant by the archipelagic state of certain rights to foreign ships, and therefore, the modalities of exercising such right is subject to the exclusive competence of the archipelagic state so long as the minimum condition of non-impairment of passage is maintained. Freedom of navigation is not the foundation for deter-mining the extent of rights and duties of foreign vessels within archipelagic waters, but rather the sovereignty of the archipelagic state, which is obliged under international law only to permit continuous, expeditious, and unobstructed passage; anything more remains subject to the sound discretion of the archipelagic state.
While transit passage is enjoyed as a matter of right through straits used for international navigation without geographic qualification,[48] the right of archipelagic sea lanes passage is enjoyed only through designated sea lanes.[49] While this may not be much of a distinction when considering single-strait situations, it makes a very great difference in the Philippine geographic situation where there are multiple straits which may be linked by any combination of sea lanes. This allows the Philippines far greater flexibility in the regulation of passage through archipelagic waters, certainly far more than in a single-strait situation contemplated by Part III. Outside of the designated sea-lanes but within the archipelagic waters, the regime of innocent passage applies, upon which the archipelagic state may exercise its rights, duties, and obligations described in Part II, Section 3 of the Convention.
While ships exercising the right of archipelagic sea lanes passage are expected to exercise the right in ‘normal passage routes for international navigation,’ and in the absence of designated archipelagic sea lanes they may exercise the right in ‘all routes normally used for international navigation,’ ships exercising the right of transit passage are not subject to such a qualification.[50] This distinction is important to the Philippines because of the existence of an inter-island route network for domestic transportation that overlaps with the international routes that traverse the heart of the archipelago. The lack of a definition in the Convention of the term ‘normal passage route’ and ‘route normally used’ for international navigation, combined with the archipelagic states’ primary and exclusive competence over prescribing the terms and conditions under which the right of archipelagic sea-lanes passage is to be exercised, allows the Philippines an amount of discretion in determining which routes should be subject to the right of archipelagic sea-lanes passage particularly if the routes are actually inter-island routes.
Whereas the route through which the right of transit passage may be exercised is not subject to limitation, the archipelagic sea-lanes are established by axis lines that can keep ships and aircraft from passing too close to the coast of the archipelagic state, and while theoretically a ship or aircraft may deviate to a maximum of 25 nautical miles to either side of the axis line, they cannot come closer to the coast than 10% of the width between the nearest points of the bordering coastlines.[51] In the Philippine situation, this difference allows it a greater degree of flexibility in protecting the coasts of the islands adjacent to the archipelagic sea-lanes from intrusion. Rather than having 50-mile-wide air and water corridors traversing the archipelago, the Philippines may reasonably limit the physical extent of archipelagic waters through which the right of archipelagic sea-lanes passage may be recognized on the basis of practical and reasonable considerations of vessel and aircraft safety. The 25-mile deviation appears to be only an allowance for navi-gational purposes, which is necessary especially to avoid collisions of ships or aircraft, and does not prevent the archipelagic state from prescribing a shorter distance in view of the situation.
Historically, the Philippines has always treated archipelagic waters as ‘internal’ waters, even though the legal and official documentation apparently describes them as more akin to ‘territorial’ waters. Although its signature and ratification of the Law of the Sea Convention should be deemed to have settled the legal debate over definitions of terms, Filipino perspectives must always necessarily begin from the same foundations that have guided its positions in the Law of the Sea negotiations. There is no question that the Philippines intends to comply with its obligations and duties under the Convention; however, it is how these obligations and duties may best be carried out while protecting the interests of the country in light of its unique characteristics that are taking longer to determine. This historically-grounded perspective is actually founded on very practical considerations, and will likely color the manner and means by which the Philippines will implement Part IV of the Convention.
[1] This paper was presented at the 10th Meeting of the CSCAP Maritime Cooperation Working Group held in Kuala Lumpur in June 2001. Portions of the paper were previously published or presented in ‘The Philippines Right to Designate Archipelagic Sealanes In Its Archipelagic Waters Under International Law’ in Ocean Law and Policy Series, vol. 1, no. 1, UP Institute of International Legal Studies, Quezon City, 1997; and ‘Archipelagic Sealanes and Transit Passage Through Straits: Shared Responsibilities is Essential to Implementation’ presented at the 13th Conference on the Sea Lines of Communication held in Canberra, Australia on April 2-4, 2001.
[2] Executive Director, Philippine Center for Marine Affairs, Inc.
[3] The first Note Verbale was sent on 7 March 1955; it was later re-submitted in 20 January 1956 in order to correct a typographical error.
[4] UN Doc. A/2934, pp. 52-53, excerpted from Tangsubkul, P. The Southeast Asian Archipelagic States: Concept, Evolution, and Current Practice. Research Report No. 15, East-West Environment and Policy Institute, Honolulu, February 1984, at pp. 40-41.
[5] United Nations Secretariat, Division for Ocean Affairs and the Law of the Sea. The Law of the Sea: Archipelagic States. Legislative History of Part IV of the United Nations Convention on the Law of the Sea. United Nations, New York (1990) (hereafter cited as ‘UN DOALS’), p. 1.
[6] Rep. Act. No. 3046 (1961) in Lotilla, R.P. (ed.), The Philippine National Territory, UP Institute of International Legal Studies, UP Diliman, Quezon City, 1994, p. 276.
[7] Response to interpellation of Arturo Tolentino, in ‘Proceedings of the Philippine House of Representatives on Senate Bill No. 541: Baselines of the Philippine Territorial Sea [1960-1961]’ in Lotilla, op. cit., pp. 325-326.
[8] Excerpt from the sponsorship speech of Sen. Arturo Tolentino in ‘Proceedings of the Philippine Senate on Senate Bill No. 541: Baselines of the Philippine Territorial Sea [1960]’ in Lotilla, op. cit., p. 287.
[9] Kwiatkowska, B. and E. Agoes. Archipelagic State Waters Regime in the Light of the 1982 UNCLOS and State Practice. Netherlands Cooperation with Indonesia in Legal Matters, Bandung (1991), p. 19.
[10] ibid., pp. 10-12.
[11] ibid., p. 13.
[12] loc. cit.
[13] UN DOALS, p. 24.
[14] Kwiatskowska & Agoes, op. cit., pp. 37-38.
[15] ibid.
[16] Kwiatkowska & Agoes, op. cit., p. 20.
[17] UN DOALS, pp. 113-114.
[18] UN DOALS, pp. 106-113.
[19] Kwiatkowska & Agoes, op. cit., p. 20.
[20] ‘The Philippine Declaration on the Signing of the Convention on the Law of the Sea, 10 December 1982’, in Lotilla, op. cit., pp. 509-510.
[21] ‘Batas Pambansa Resolution No. 121 dated 27 February 1984’, in Lotilla, op. cit., p. 512.
[22] Statements of Foreign Minister Arturo Tolentino during the deliberations on Resolution No. 121 dated 27 February 1984, in ‘Proceedings of the Deliberation on BP Resolution No. 121’, in Lotilla, op. cit., p. 523.
[23] ‘Philippine Response to the Australian Protest (1988)’ in Lotilla, op. cit., p. 548.
[24] Batac-Catalan, et al., ‘Environmental Management Imperatives in the Philippines as an Archipelago’ in Archipelagic Studies, J. Batongbacal, ed., UP Center for Integrative Development Studies, Diliman, Quezon City 1998, p. 12.
[25] ibid., p. 13.
[26] ibid.
[27] ibid.
[28] ibid.
[29] ibid.
[30] Simon, D. ‘The Role of the Philippine Ports Authority and the UN Convention on the Law of the Sea’, in Philippine Ports, Shipping, and Navigation Under the New International Law of the Sea, R. Vea and I. Fernandez, eds, UP Institute of International Legal Studies, University of the Philippines, Diliman, Quezon City, 1995, pp. 11-18, at 11.
[31] UN DOALS, p. 45.
[32] Philippine Coast Guard, Briefing Presentation delivered at the Maritime League-PCG Fellowship, February 28, 2001, PCG Headquarters, Manila.
[33] ibid.
[34] ibid.
[35] Sec. 13(d), Rep. Act No. 6969 (1990).
[36] Sec. 3, Rep. Act No. 7596 (1992).
[37] Sec. 16, Rep. Act No. 8550 (1998).
[38] Sec. 87, Rep. Act No. 8550 (1998).
[39] Sec. 1, Exec. Order No. 132 (1999).
[40] Payoyo, P. ‘Shipping and Navigation Regimes Under the 1982 Law of the Sea Convention: Philippine Concerns’, in Vea & Fernandez, op. cit., pp. 75-101, at 95.
[41] Churchill, R.R. and A.V. Lowe, The Law of the Sea, 2nd ed., Manchester University Press, Oxford, UK, 1988, p. 105.
[42] 1987 Constitution, Art. XII, Sec. 2.
[43] Rep. Act No. 8550, Sec. 87.
[44] UN DOALS 110.
[45] LOSC Art 52(1), in relation to Part II, Art. 3.
[46] LOSC, Art. 53(3).
[47] LOSC, Art. 38(2), Kwiatkowska & Agoes, op. cit., pp. 46-47.
[48] LOSC, Art. 37-38.
[49] LOSC, Art. 53(1).
[50] Kwiatkowska & Agoes, op. cit., pp. 47-48.
[51] LOSC, Art, 53(5); Kwiatkowska & Agoes, op. cit., p. 51.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/MarStudies/2002/3.html