Czerlene Rose Carmona JD1-301

WHETHER THE PASSAGE OF THE CHINESE WARSHIP IN THE

SIBUTU STRAIT VIOLATES THE PHILIPPINE SOVEREIGNTY

Sec. 1. Title. – Overview of facts whether the passage of the Chinese

warships vessel in the Sibutu Strait violates the Philippine Sovereignty.

Sec. 2. Declaration of Policy. - The territotial sea shall refer to the belt of
sea measured twelve (12) nautical mile from the baselines of from low-water
line, as the case may be. The Philippine shall exercise sovereign rigths over
its territorial sea and the airspace over it as well as its seabed and subsoil in
accordance with the UNCLOS and other existing laws and treaties.

Sec. 3. Definition of Terms. –

(a)Sibutu Strait- a deep channel some 18 miles (29 km) wide that
separates Borneo from the Sulu Archipelago. It has a deep sill allowing entry
of deep water into the Sulu basin while connecting the Sulu Sea with
the Sulawesi Sea that feeds from the Pacific Ocean by the Mindanao
Current.

(b)UNCLOS III- international agreement that resulted from the third

United Nations Conference on the Law of the Sea (UNCLOS III), which
took place between 1973 and 1982. The Law of the Sea Convention defines
the rights and responsibilities of nations with respect to their use of the
world's oceans, establishing guidelines for businesses, the environment, and
the management of marine natural resources

(c) Philippine Sovereignty- refers to the status of the Philippines as an

independent nation. This article covers sovereignty transitions relating to the
Philippines, with particular emphasis on the passing of sovereignty from
Spain to the United States in the Treaty of Paris (1898), signed on December
10, 1898 to end the Spanish–American War. 1

Sec. 4. UNCLOS III Art. 18. - Passage means navigation through the
territorial sea for the purpose of: (a) traversing that sea without entering
2
internal waters or calling at a roadstead or port facility outside internal
waters; or (b) proceeding to or from internal waters or a call at such
roadstead or port facility. Passage shall be continuous and expeditious.
However, passage includes stopping and anchoring, but only in so far as the
same are incidental

Sec. 5. UNCLOS III Art. 19. - Passage is innocent so long as it is not

prejudicial to the peace, good order or security of the coastal State. Such
passage shall take place in conformity with this Convention and with other
rules of international law. Second, Passage of a foreign ship shall be
considered to be prejudicial to the peace, good order or security of the
coastal State if in the territorial sea it engages in any of the following
activities:

(a) any threat or use of force against the sovereignty, territorial

integrity or political independence of the coastal State, or in any other
manner in violation of the principles of international law embodied in the
Charter of the United Nations

(b) any exercise or practice with weapons of any kind

(c) any act aimed at collecting information to the prejudice of the

defence or security of the coastal State

(d) any act of propaganda aimed at affecting the defence or security

of the coastal State

(e) the launching, landing or taking on board of any aircraft

(f) the launching, landing or taking on board of any military device

1
Gary C. Aejano, July 5, 2016, “An act defining the Marital Zone of the Republic of the Philippines”
http://www.congress.gov.ph/legisdocs/basic_17/HB01118.pdf
2
“Sovereignty of the Philippines”, https://en.wikipedia.org/wiki/Sovereignty_of_the_Philippines
“United Nations Convention on the law of the Sea”,
https://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf
 (g) the loading or unloading of any commodity, currency or person
contrary to the customs, fiscal, immigration or sanitary laws and regulations
of the coastal State

(h) any act of wilful and serious pollution contrary to this Convention;
(i) any fishing activities

(j) the carrying out of research or survey activities

(k) any act aimed at interfering with any systems of communication

or any other facilities or installations of the coastal State

(l) any other activity not having a direct bearing on passage.

Sec. 6. – Conclusion. - No, it does not violate our Philippine sovereignty.

The China-Philippines relationship is now on a healthy track and is perhaps
as good as it has ever been, there is no reason for China to send military
vessels to post a security threat to damage bilateral relations
intentionally. The passage of Chinese ships through Sibutu passage should
not be a problem to concern.

According to Article 53 paragraph 12, "if an archipelagic State does

not designate sea lanes or air routes, the right of archipelagic sea lanes
passage may be exercised through the routes normally used for international
navigation. The Situba passage is a deep channel about 18 miles wide
connecting the Sulu Sea with the Sulawesi Sea. It is one of the eight most
important straits lying wholly within Philippine archipelagic waters. It is an
important transit route for international trade between the Pacific and the
Indian Ocean with an amount of around 15000 annual ship passage. Thus the
Situba passage is a route "normally used for international navigation" that all
the vessels can sail through as an archipelagic sea lanes passage, including
the Chinese warships.3

3
Christopher Lawrence Go, “Chinese Vessels through Sibutu Passage Well-Grounded in Law”,
August 28, 2019, http://ph.china-embassy.org/eng/sgdt/t1692224.htm
 Chinese Vessels through Sibutu Passage Well-Grounded in Law
2019/08/27
Dr. Yan YAN, Director of Research Center for Oceans Law and Policy, National Institute
of South China Sea Studies (NISCSS)

On Aug 20th, Senate Christopher Lawrence Go said the Philippine government

would require vessels from other countries to notify Philippine authorities about their
impending passage through "territorial waters" and get clearance from proper
government authority well in advance. It is a response to the reported Chinese warships
passed through the Situba Strait in July and August. Philippine Foreign Secretary
Teodoro Locsin Jr also said he filed a diplomatic protest against China over the issue.
Philippine presidential spokesman Salvador Panelo said it is a violation of the United
Nation Convention on the Law of the Sea (UNCLOS) since they passed through the
Philippine's "exclusive economic zone."

It seems that the PH government officials are confused about the status of waters
around the Sibutu passage--whether they are territorial sea or exclusive economic zone
or archipelagic waters. Moreover, there is no domestic law requiring foreign vessels to
get such clearance before passing through the waters within its archipelagic baseline.

Philippines Archipelagic Waters Claim Unclear

Consisting of more than 7000 islands and islets located around 600 miles off the south-
eastern coast of the Asian mainland, the Philippines is an archipelagic State that made a
significant contribution to the recognition of Archipelagic State status at the
UN negotiation conferences of the UNCLOS.

The 1987 PH Constitution stated that there is no difference between internal waters and
archipelagic waters while the UNCLOS distinguishes the two. In 2009, the
Philippines updated its archipelagic baselines through R.A. 9522, otherwise known as an
Act to Amend Certain Provisions of Republic Act No. 3046, as Amended by Republic Act
No. 5446, to define the Archipelagic Baselines of the Philippines, and for Other
Purposes. However, it does not identify whether the waters within the baselines are
archipelagic waters or internal waters, and it did not specify the breadth of the
territorial sea. Moreover, While it is a consequence of acquiring archipelagic status to
designate archipelagic sea lanes passage, it has so far not submitted a proposal to the
International Maritime Organization (IMO) on the designation of archipelagic sea lanes
passage.

Nothing Illegal about China's Vessels Navigate through Sibutu Passage

According to Article 53 paragraph 12, "if an archipelagic State does not designate sea
lanes or air routes, the right of archipelagic sea lanes passage may be exercised through
the routes normally used for international navigation. The Situba passage is a deep
channel about 18 miles wide connecting the Sulu Sea with the Sulawesi Sea. It is one of
the eight most important straits lying wholly within Philippine archipelagic waters. It is
an important transit route for international trade between the Pacific and the Indian
Ocean with an amount of around 15000 annual ship passage. Thus the Situba passage is
a route "normally used for international navigation" that all the vessels can sail through
as an archipelagic sea lanes passage, including the Chinese warships.

Some also accused China of being "double standard" since it requires foreign vessels to
have prior authorization in its territorial sea. But the accusation makes no sense. China
does require foreign warships to apply for passage in its territorial sea according to the
1992 Law of Territorial Sea and Contiguous Zone. It did not notify the Phillippines
government simply because there is no requirement from the government.

In 2011, the Supreme Court stated that Philippines sovereignty over the waters within
the archipelagic baselines is subject to the rights of innocent passage and archipelagic
sea lanes passage as provided for under international law. However, the PH legislation
never requires clearance or prior notification of foreign vessels passing through the
waters within its baseline. China respects PH domestic legislation and will notify
relevant authorization if there's such a legal requirement.

Navigational Issues Should not be an Obstacle to China-Philippines Relationship

Despite the unresolved territorial and maritime delimitation dispute, political relation
between China and the Philippines has improved dramatically in the past three years.
Stable top-level relation also helps promote maritime cooperation and facilitate the
expansion of economic deals. China has been the Philippines' largest trade partner since
2016 and its biggest investor since last year. The two countries established the Bilateral
Consultation Mechanism and already held four conferences so far, coast guard
cooperation are also on the schedule.

The China-Philippines relationship is now on a healthy track and is perhaps as good as it

has ever been, there is no reason for China to send military vessels to post a security
threat to damage bilateral relations intentionally. The passage of Chinese ships through
Sibutu passage should not be a problem to concern. President Duterte is expected to
make his fifth trip to China at the end of August. It is better to save time to discuss real
 significant issues such as how to achieve a Code of Conduct in the near future or resolve
the long-standing disputes in a peaceful way.

territorial waters
: the waters under the sovereign jurisdiction of a nation or state including both marginal
sea and inland waters