With over seven thousand islands, the Philippine archipelago is rich with natural resources in its coastal, marine and inland waters. It has a 37,008 km coastline exceeding that of China (14,500 km), United States (19,924 km), and Japan (29,751 km). Given such a vast jurisdiction, the Philippines is no stranger to intrusions from illegal foreign activities. Republic Act 9522, an amendment to RA 5446, defines the archipelagic baselines of the Philippine archipelago consistent with the 1982 UN Convention on the Law of the Sea (UNCLOS). Archipelagic baselines encompass the constituent islands of the Philippines that serve as the bases from which Philippine maritime zones are measured, from the territorial sea and the contiguous zone, to the exclusive economic zone, the continental shelf, and the extended continental shelf. By defining its baselines, the Philippines should be able to exercise sovereignty in its archipelagic waters—the waters enclosed by the archipelagic baselines.
Redefining its archipelagic baselines through UNCLOS and Republic Act No. 9522 has allowed the Philippines to delimit its overlapping exclusive economic zone with Indonesia, gain an extended continental shelf in the Philippine Rise, and successfully challenge China’s excessive maritime claims before an international arbitral tribunal.
However, even with this legal measure in place to defend its sovereignty, the Philippines is yet to take full advantage of what UNCLOS allows for the protection of archipelagic waters. Under UNCLOS, the Philippines is also entitled to designate archipelagic sea lanes (ASL) in its archipelagic waters and adjacent territorial sea. While designation of ASL is optional and, arguably, not necessary for the Philippines to be fully compliant with UNCLOS, experts agree that doing so will greatly benefit the country.
The recently concluded Kwentong Mandaragat webinar on archipelagic sea lanes highlighted the importance and necessity of designating ASL despite its optional nature. Non-designation will allow all foreign vessels, including foreign military ships and aircraft, to exercise normal-mode passage in all sea routes routinely used in international navigation – allowing foreign submarines to navigate underwater without showing their flag, and foreign aircraft carriers to sail with air escorts when transiting normal passage routes. Non-designation of ASLs will inevitably compromise the country’s security.
The Philippines’ non-designation of ASLs has resulted in real security concerns for the country’s maritime security and law enforcement agencies. In 2019 alone, the Philippines experienced repeated incidents of Chinese warships transiting the Sibutu Passage without notifying the Philippine authorities. Moreover, these Chinese warships did not turn on their automatic identification systems (AIS). According to authorities, such action must have been deliberate in order to evade radar detection by Philippine authorities. While the military did not automatically consider the incidents as hostile, these intrusions underscore the urgency of designating ASLs.
Complementing the Arbitration Award
Designating ASLs would also complement the Philippines’ national interest in fleshing out the fruits of its victory in the 2016 arbitral tribunal award against China. By building on the finding of the award in its process of designating sea lanes, the Philippines can solidify its claims and jurisdiction in the West Philippine Sea (WPS).
By compelling vessels to traverse through the ASLs, the Philippines would also be able to manage other security risks such as illegal intrusions, the maritime drug trade, and unauthorized marine scientific research by foreign vessels, particularly those from China, not only in the WPS but on its eastern seaboard as well.
User states, such as the US, Australia, and China, are likely to raise questions and objections as the Philippines tries to designate its ASLs. Hence, Philippine diplomats and negotiators need to be creative, to diligently prepare for consultations, to use data in support of identifying ASLs, and to highlight the benefits for the country of having designated ASLs. These include reducing navigational safety risks and avoiding collisions that may result in operational and political conflict. The designation of ASLs would also mean that authorities can focus their monitoring efforts of warships traversing these designated nautical highways, rather upon all of the Philippines' vast archipelagic waters.
Beefing up the Philippines' capabilities at the policy and operational levels
At the policy level, the discussion on designating ASLs continues to gain traction. In terms of legislative action, Senator Koko Pimentel, who also chairs the Senate Committee on Foreign Relations, has recently filed Senate Bill No. 1890 on ASLs. This is noteworthy to mention because such legislative action will go hand-in-hand with similar legislative measures on ASLs that are being pursued in the House of Representatives.
While there are competing points of view on the necessity of legislation designating ASL, the merits for domestic legislation cannot be ignored. Such act will allow the Philippines to codify in its domestic law provisions relating to ASLs under UNCLOS, and therefore be fully compliant with the relevant international law.
However, discussion at the policy level alone is not sufficient. Policy actions should be coupled with the upgrading of the capabilities of maritime security and law enforcement agencies. In all its maritime fronts, the Philippines confronts various traditional and non-traditional security threats. As it distances itself from the United States to benefit from the economic incentives presented by China, and with its limited budget as a developing country, one of the main security challenges for the Philippines remains: hedging among bigger powers while defending its territory. Even as legislation to designate its archipelagic sea lanes helps in this case, it would be wise to invest in the genuine modernization of the Armed Forces of the Philippines, the Philippine Navy in particular, increasing the capabilities of the Coast Guard, and the development of maritime domain awareness systems.
For now, the policy discussion may focus on the technicalities of designating the country’s ASLs but it would be prudent if the conversation does not leave behind the need to ensure sufficient appropriations so that the maritime security and law enforcement agencies will be able to effectively monitor and protect the country’s archipelagic sea lanes.
*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.
Joycee Teodoro holds a Master in Public Policy degree from the Lee Kuan Yew School of Public Policy, National University of Singapore..
Florence Principe Gamboa is a Senior Associate at the Amador Research Services. She is also Managing Editor and Coordinator of the Philippine Strategic Forum. She obtained her Master's degree in International Studies from the University of the Philippines Diliman. Prior to ARS and PSF, she has published her research and worked on Track Two diplomacy at Asia Pacific Pathways to Progress.
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