President Duterte cannot compel foreign ships to ask first for permission before passing through Philippine waters, Supreme Court Senior Associate Justice Antonio Carpio said on Thursday.
Carpio said that the United Nations Convention on the Law of the Sea (Unclos) allows foreign ships to make “innocent passage” in territorial or archipelagic waters.
“Under Unclos, in the exercise by foreign merchant ships and warships of innocent passage through the territorial sea or archipelagic waters, the coastal state cannot require prior permission or prior notification,” he said in a statement.
But to avoid tension like that caused by the sightings of Chinese survey ships and warships in Philippine waters recently, he suggested that the President ask Congress to pass a long-pending law designating sea lanes for foreign vessels.
Sea lanes for foreign ships
“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 can pass,” Carpio said.
The law can require foreign ships exercising the right to archipelagic sea lane passage to turn on their automatic identification system and for submarines to surface and show their flag, he said.
On Tuesday, Mr. Duterte required all foreign vessels passing through Philippine waters to get permission first.
“Either we get compliance in a friendly manner or we enforce it in an unfriendly manner,” said his spokesperson, Salvador Panelo.
The President issued the order after Defense Secretary Delfin Lorenzana reported sightings of Chinese survey ships and warships passing in Philippine waters without asking permission between February and July.
Foreign Secretary Teodoro Locsin Jr. admitted the President’s order could not be enforced easily.
“Frankly, innocent passage is enjoyed by all naval powers regardless without anything more,” he tweeted on Wednesday.
“Still a state may demand the need for its permission even if it cannot enforce its demand or punish its rejection,” Locsin said.
Malacañang, however, insisted that foreign vessels must first seek permission before traveling through Philippine waters.
“We will maintain that position as initiated by the President,” Panelo said on Thursday. “As the President said, to avoid misunderstanding. It means it’s better for us to be informed so we can also secure them.”
Panelo had no comment on Carpio’s and Locsin’s statements about innocent passage under Unclos.
Lorenzana, speaking to reporters after an event at the Philippine Navy headquarters on Thursday, said Mr. Duterte’s order was a “good development.”
While the action does not violate any maritime laws, the frequent unannounced passage of Chinese warships is a violation of protocol and common courtesy between nations, the defense secretary said.
The matter, he added, needs to be raised in diplomatic protests to the Chinese government.
Locsin earlier said he had fired off diplomatic protests over the unannounced passage of Chinese vessels.
The Department of National Defense said it would work out guidelines with the military for the enforcement of the order.
“We will have to carefully work this out with the [military], particularly the commands whose area of operations these fall under,” Defense Undersecretary Cardozo Luna said in a statement.
“There needs to be [standard operating procedures] that clearly define our responses in compliance with existing Philippine and international laws,” said Cardozo, who is also spokesperson for the defense department. —WITH REPORTS FROM JULIE M. AURELIO AND JEANNETTE I. ANDRADE
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