High Time for ASL Designation?
The jurisprudence of our Supreme Court involving elements of the law of the sea reflect the still evolving understanding, even in key legal circles, of what it means for the Philippines to have the status of an archipelagic state under international law. The curiously evident need to observe the Maritime and Archipelagic Nation Awareness Month (MaNaMo) for a State that prides itself on 7,000 islands connected, not separated, by its waters, is proof of the remaining work to be done. Indeed, almost 26 years since the entry into force of the UN Convention on the Law of the Sea (UNCLOS), the Philippines has yet to take advantage of the prerogatives that the so-called constitution for the oceans reserves for archipelagic states.
This, for the most part, is for good reason (or precaution).
For decades now, the debate has marched on as to whether the directive under Art. 53 of the UNCLOS for the designation of archipelagic sea lanes (ASLs) is an obligation or an option. The contemporary consensus is on the latter, given the text’s permissive formulation (“An archipelagic State ‘may’ designate”), but disadvantages presented by this view mobilize support for the other. In case of non-designation of ASLs, foreign vessels remain entitled anyway to exercise ASL passage through the routes normally used for international navigation. Even in the case of ASL designation, as was done by Indonesia beginning in the late 90s, archipelagic states can still be regarded as having made only a partial designation if the subject sea lanes do not satisfy the requirement of “[including] all normal passage routes used as routes for international navigation … and, within such routes, … all normal navigational channels”. Within those other routes, the right of ASL passage in favor of foreign vessels must still be recognized.
Today, fairly identical bills on the establishment of ASLs are again pending before the relevant congressional committees. Such proposals have deviated from positions maintained in earlier iterations (dating back to the 15th Congress) that the ASLs be designated in the text of the law itself, opting instead for Executive designation following compliance and consultation with relevant instruments or bodies such as the International Maritime Organization. This would allow for maximum opportunity, subsequent to legislative authorization, to consult with as many stakeholders as possible on the designation of sea lanes normally used for navigation by ships of user States, as well as flexibility in substituting sea lanes or traffic separation schemes should they be required by future circumstances.
Indeed, the time is ripe for ASL designation and legislation related to the exercise of ASL passage. This will provide a measure of certainty in light of increasingly frequent reports of foreign warships passing through Philippine archipelagic waters and their alleged conduct of activities exceeding the common understanding of “continuous, expeditious and unobstructed transit” from one EEZ or high seas area to another. But such certainty comes at a price: ASL designation is virtually a license for passage in the normal (hostile, stealth) mode for warships of any State through Philippine archipelagic waters. It is therefore incumbent upon the State to improve its capability to surveil, police, and assert jurisdiction over all activities in such ASLs to be designated. Designating numerous sea lanes (as many as 11, for example, as proposed by the Philippine Coast Guard early in September 2020) may prove counterproductive if the State remains hard-pressed in defending its vast maritime territory. Opening up archipelagic waters in a wholesale manner also raises the risk for marine environmental degradation in key waterways.
On the other hand, designating too few ASLs may not be completely satisfactory for purposes of strict compliance with the UNCLOS. As seen in the Indonesian example, foreign warships can continue to exercise and invoke their right to ASL passage through their considered normal navigational routes—that is, other than through the country’s three officially designated ASLs. In this situation, however, it is not the number of designated ASLs that is material, but the actual usage of such sea lanes by the international community. This thus makes all the more apparent the need for extensive consultations not only among Philippine policymakers and implementing agencies, but also with major maritime user States in our waters and relevant international bodies like the IMO. Where the UNCLOS does not provide guidelines on determining what the normal navigational routes are, shipping data on maritime traffic can be consulted to arrive at evidence-based findings on the appropriate waterways to designate as archipelagic sea lanes. Only with such technical compliance and acceptance by domestic and international stakeholders can the regime for archipelagic states under the law of the sea be fully effective for the Philippines.
*This article was commissioned by ARS in behalf of the Foundation for the National Interest through the support of The Asia Foundation for the project on "Governance, Security, and Development in the Philippine Maritime Domain