The recent passage of Chinese warships through the Sulu Sea generated an outburst of criticism by Philippine officials and pundits. Since February 2019, at least 14 Chinese warships including its aircraft carrier have passed through Philippines’ territorial and archipelagic waters in the Sulu Sea using the Balabac Strait -Sibutu Passage route in a manner that the Philippines claims violates its regulations. Their passage was called ‘illegal’, ‘unfriendly’ and a ‘deception’. But these epithets and the Philippines maritime claims that were “violated” are questionable.
At the least, the issue is more complex than these critics would have it.
The Philippines claims that some of China’s warships violated the innocent passage regime by diverging from a straight line course, turning off their Automatic Identification System transponders and deliberately ignoring requests to identify themselves. Brigadier General Edgard Arevalo, a spokesman for the Philippines armed forces, accused China of duplicity and deception.
The Philippines Constitution provides that “[t]he waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.” When it ratified the UN Convention in the Law of the Sea (UNCLOS) in 1984, the Philippines stated: “The concept of archipelagic waters [under UNCLOS] is similar to the concept of internal waters under the Constitution of the Philippines.” The United States and other countries have protested this understanding. In 2009, the Philippines established new archipelagic baselines but did not clarify whether the waters within the baselines are archipelagic waters rather than internal waters. But the Philippines Supreme Court has ruled “that the right of innocent passage – – – applies both in the archipelagic waters and territorial sea of the Philippines”. The Philippines Supreme Court also recognized that the right of archipelagic sea lanes passage applies in those waters.
Nevertheless the language in the Constitution claiming the waters as “internal” remains to this day.
According to (UNCLOS) the two types of waters — archipelagic waters and internal waters – – have significantly different navigational regimes. . It is unclear as to which navigation regime the Philippines claims applies in the Sulu Sea and the Philippines needs to publicly clarify this before casting aspersions.
Navigation in a country’s internal waters can only occur with the permission of the coastal state. There is no right of innocent passage.
Innocent passage is particularly important to navies. It gives them the right of passage that is not prejudicial to the peace, good order or security of the coastal state. This means that among others they should respect coastal state regulations that are compatible with UNCLOS.
However, “the coastal State cannot hamper the innocent passage of foreign ships through the territorial sea [or] impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage.”
Thus navigation in archipelagic waters is either under the regime of innocent passage or archipelagic sea lane passage in sea lanes declared by the coastal state and approved by the International Maritime Organization (IMO). If none are declared then foreign vessels and aircraft can transit in a continuous and expeditious manner along “normal routes used for international navigation.”
But the designation of sea lanes can be a controversial issue between the coastal state and user nations. The Philippines has not officially declared a sea lane between the Balabac Strait and the Sibutu Passage. The southern Sulu Sea is rife with endemic insurgents, pirates, armed robbers, coastal raiders and smugglers and the Philippines struggles to control security there. [See Map]. This may be why it has not declared such a sea lane.
Complicating matters further, navigation through the Sibutu Passage is governed by “a trilateral cooperation agreement among the Philippines, Malaysia and Indonesia, which requires all vessels to pass through ‘navigational corridors’.” According to Philippine maritime policy expert Jay Batongbacal warships “normally abide by such rules in order to avoid untoward incidents endangering the safety of navigation.”
Batongbacal alleges that “the Chinese warships’ passage [through the southern Sulu Sea) without even acknowledging the Philippines’ queries _ _ runs counter to the Philippines’ legitimate maritime safety regulations.”
This may be so. But there is a ned for more clarity as to what regulations and law are being violated and how. Even high government officials seem confused. Philippines Cabinet Secretary Karlo Nograles speculated that the Palace announcement requiring prior permission had “something to do with Ship Identification System_ _ when they [China’s warships] pass through our sealanes and turn them off.”
This behavior was also criticized by Philippines Defense Minister Delfin Lorenzana for its “disrespect”. He claimed that “all other warships, we are informed of their passing. Only the Chinese refuse to conform to internationally accepted norms by ignoring them.” According to presidential spokesperson Salvador Panelo, “It’s becomimg an irritant if you keep on repeating certain acts that may be viewed to be in violation of UNCLOS_ _”.
This raises the issue of whether “international norms” allow prior notification for warships to undertake such innocent or sea lane passage. Some 40 states require prior permission or notification for innocent passage of warships to enter their territorial sea including in Southeast Asia, China, Taiwan, Indonesia and Vietnam. https://www.belfercenter.org/publication/freedom-navigation-south-china-sea-practical-guide If the Philippines did not require prior notification and permission before the passage of China’s warships through the Sulu Sea, it certainly does now. Aon August 16, Panelo stated that “the president is putting on notice that beginning today, all foreign vessels passing or territorial waters must notify and get clearance from the proper government authority well in advance of the actual passage”.
While clearly a reaction to the passage of China’s warships through the Sulu Sea, it is worded to apply to “all foreign vessels”. Such restrictions on innocent passage are not consonant with UNCLOS and the maritime powers including prominently the U.S. are firmly opposed to them and do not –and will not—comply for security reasons. The Philippines uses its 1951 Mutual Defense Treaty with the U.S. to justify not requiring the same prior notification by US warships.
But such passage cannot be discriminated against based on the flag state. China may have similar security reasons for non-compliance given that the position of its warships will almost certainly be passed to the U.S. military.
Batongbacal has pointed out that “The entry of Chinese warships into Philippine waters without prior notice and consent of the Philippines runs counter to their own policy for their own waters, and thus demonstrates a double standard at the very outset.” This is true and China’s claim is often challenged by US Freedom of Navigation Operations. But the Philippines is also demonstrating a double standard for requiring such prior notification for China’s and others warships but not for those of the U.S.
Understandably, the U.S. has been cautious regarding this particular flap. When pressed by reporters to comment on the passage of the Chinese warships, US General David Goldstein, Chief of Staff of the US Air Force in the Pacific, said “_ anybody in the region that violates those international rules of order in territorial seas is concerning.” “China benefits as well as anyone else if we all adhere to international norms and rules of behavior.”
The official US position is that “archipelagic waters are subject to the regimes of innocent passage and archipelagic sea lanes passage.” It opposes and challenges through Freedom of Navigation Operations the Philippines claims to archipelagic waters as internal waters.
The point is that this chastising of China’s behavior is just another flimsy flap created more by Philippine domestic politics than concern for upholding the “international order.” China’s warship passages are controversial. It should, as a ‘friend’, make its protocol of warship passage more ‘friendly’ or at least explain why it does not notify authorities or respond to requests for identification.. But the Philippines’ claim to archipelagic waters as internal waters and its requirement for prior notification of Chinese warships –and now for “all foreign vessels” –for innocent passage is not supported by UNCLOS. The debate will continue. But as the old adage goes, ‘those who live in glass houses should not throw stones.’