Duterte can't ban foreign ships from passing PH, Carpio says

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Metro Manila (CNN Philippines, August 22) — President Rodrigo Duterte cannot simply require foreign vessels to seek the Philippines' permission when passing the country's waters because of the right of innocent passage enshrined in international maritime law.

This was pointed out by Senior Associate Justice Antonio Carpio in a statement on Thursday, citing the United Nations Convention on the Law of the Sea (UNCLOS), which the Philippines had signed.

"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," Carpio said.

Duterte earlier warned foreign vessels that they need to obtain proper clearance to pass through the country’s territorial waters — or else they will be asked to leave. His order came following several sightings of Chinese warships and survey vessels in Philippine waters without notifying local authorities.

READ: Chinese survey ship spotted in PH EEZ again

Carpio said what the President can do is certify as urgent a measure that will establish archipelagic sea lanes. "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," he said. The International Maritime Organization requires that all ships of at least 300 gross tonnage carry AISs, which would send the ships' information to other vessels and to coastal authorities.

Malacañang in a media briefing shrugged off Carpio's statement, saying the President's directive stays. Presidential Spokesperson Salvador Panelo stressed the President made the order "to avoid misunderstanding," and so "we can secure" the foreign vessels also.

Panelo said he will clarify if the President's order applies to both merchant vessels and warships, and if it extends to those traveling in the country's 200-nautical mile exclusive economic zone (EEZ), where the country has sovereign rights.

Meanwhile, the Defense Department said standard operating procedures should clearly define the government's response to the presence of foreign vessels, "in compliance with existing Philippine and international laws."

The Philippines recently filed diplomatic protests with China over the unauthorized passage of its warships in Sibutu Strait, an internationally-recognized shipping lane south of Tawi-Tawi – two in July, three in August. Four Chinese warships were also spotted in the same strait early this year.

READ: Unauthorized passage of Chinese warships not an act of friendship – Palace

Earlier this month, the Philippines protested the presence of two Chinese survey ships. Between August 5 and 6, one of the research vessels came as close as 75 nautical miles from Siargao island, well within the country's 200-nautical mile EEZ, where the Philippines has sovereign rights. Four Chinese Navy ships also transited Balabac Strait in Palawan in June, ignoring radio warnings.

Foreign Affairs Secretary Tedoro "Teddy Boy" Locsin earlier said diplomatic protests have been "fired off" for these incidents.