Carpio: Foreign warships passing PH waters don’t need clearance under UNCLOS

MANILA, Philippines — President Rodrigo Duterte’s new directive requiring foreign warships to get clearance before passing through Philippine waters goes against the United Nations Convention on the Law of the Sea (UNCLOS). 

The Philippines should instead push for the enactment of the Archipelagic Sealanes Passage bill, Senior Associate Justice Antonio Carpio said Thursday.

“Under UNCLOS, in the exercise by foreign merchant ships and warships of innocent passage thru the territorial sea or archipelagic waters, the coastal state cannot require prior permission or prior notification,” he said.

“What the Philippines should do is to pass the Archipelagic Sea Lanes Passage bill so the President can designate the sea lanes where foreign merchant ships and warships could pass,” he added. 

The House Bill 5487, which has been pending for years, will allow the Philippines to identify its archipelagic sea lanes and designate where civilian and military ships could pass through.

“The law can require foreign ships exercising the right to archipelagic sea lane passage to turn on their automatic identification system (AIS) and for submarines to surface and show their flag,” Carpio said.

“The President should certify it as an urgent measure,” he added.

Getting China to comply would be another issue. The Philippines should use the world stage if it does not.

“We can denounce China before the General Assembly. China will suffer a damage to its reputation of it does not comply,” Carpio said.

“There is no world policeman to make China comply. The Philippine Navy can bar China from passing but our navy is no match China’s navy,” he added.

Duterte on Tuesday issued an order requiring foreign warships to ask for permission before passing through Philippine waters amid reports of repeated sightings of Chinese warships within the country’s 12-mile territorial sea. 

The foreign warships would face “unfriendly” treatment if they failed to do so. 

The Chinese warships that passed through the country’s territorial waters in recent months also switched off its AIS and ignored radio warnings from the Philippine military.

‘Switch on AIS’

A senior armed forces official has similar sentiments with Carpio. 

“If we are going to base it on the UNCLOS, it is not required [to ask permission from the Philippines],” the official told reporters in the condition of anonymity.

But he said China’s mistake was turning off its AIS while passing through the country’s waters.

“They should not be shutting it down. Likewise, if they are contacted and challenged, they should reply,” he said.

Meanwhile, Defense Usec. Cardozo Luna said they will have to study how to implement the President’s order.

“We will have to carefully work this out with the AFP, particularly the commands whose area of operations these fall under,” he said.

“There needs to be SOPs that clearly define our responses in compliance with existing Philippine and international laws,” he added. /je