Proposal for the Designation of the Philippines Archipelago As a Particularly Sensitive Sea Area

Proposal for the Designation of the Philippines Archipelago as a Particularly Sensitive Sea Area

EXECUTIVE SUMMARY

The environmental and ecological tragedy that resulted from the oil spill from the sinking of MIT Solar 1 highlights the urgent need to build up and finally put into order the Philippines' archipelagic house, at least, as far as ocean governance is concerned.

This policy paper sets forth a proposal for the designation of the entire Philippines archipelago as a Particularly Sensitive Sea Area (PSSA), the adoption and implementation of associated protective measures (APMs), domestic ship routeing and sea lanes of communication backstopped by a comprehensive, fully coordinated and integrated monitoring, control and surveillance (MCS) infrastructure.

The proposal/proposition would best address in a comprehensive manner a large area of concern in the field of ocean governance for the Philippines as an archipelagic State. Furthermore, on account of its inevitable regional reach, this would hopefully, in practical terms, initiate the regional implementation of UNCLOS Part IX (Enclosed or Semi-Enclosed Seas) to guarantee regional maritime safety and security.

University Of Hawaii School of Law Library - Jon Van Dyke Archives Collection Maritime and Ocean Affairs Center Department of Foreign Affairs

19 October 2006

Proposal for the Designation of the Philippines Archipelago as a Particularly Sensitive Sea Area (PSSA)

Introduction

The environmental and ecological damage wrought by the oil spill from the sinking of MIT Solar 1 highlights the vulnerability of the country on account of its peculiar characteristics as an archipelagic State. The Partnerships in Environmental Management for the Seas of East Asia (PEMSEA) has characterized the Philippines as the quintessential coastal State in that not a single town or city in the country is more than a hundred kilometers from shore. But more than being a coastal State, the country is an archipelagic State, with the most compact grouping of islands among archipelagos in the world, strewn across principal shipping lanes. Straits in the Ph ilippines that have "normally been used" for international navigation are the Babuyan Channel, Balintang Channel and Luzon Straits in the north, the San Bernardino and Mindoro Straits in the mid-section of the country, and Surigao and Balabac Straits in the south. They are also the only entry and exit points, it might be emphasized, into and from archipelagic waters.

In tending our Ocean yard, however, this geographical/geological scenario is only half the picture of vulnerability. In terms of marine biodiversity, data from World Wildlife Fund for Nature (WWF) indicates that on a scale of 1 to 5, the region rates as 5 and among a very few all over the world in this highest category. This large marine eco-region also cradles the so-called "coral triangle" which nurtures the highest number of species, more than those in the Great Barrier Reef. Its mangroves and sea grass beds are the spawning and feeding grounds of many important fish and aquatic species including straddling and highly migratory fish stocks, and endangered sea turtles and other marine mammals.

The above concern relating to the marine environment and in regard to the unique situation of the Philippines as a most strategically located archipelagic State, is made more acute on account of risks associated with merchant and military shipping activities, domestic and international. In the course of routine operations and accidents,

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University Of Hawaii School of Law Library - Jon Van Dyke Archives Collection Maritime and Ocean Affairs Center Department of Foreign Affairs ships may release a wide variety of substances either directly into the marine environment or indirectly through the atmosphere. Pollutants may damage the marine and coastal environment as a consequence of shipping accidents or willful acts of pollution. Such pollutants include radiological, nuclear and other hazardous and noxious solid and liquid substances, oil and oily mixture, sewage, garbage, anti-fouling systems, harmful aquatic organisms and pathogens, ballast water, and even noise; substances that pose threats to the marine environment and the living resources of the sea. In addition, ships may cause harm to marine organisms and their habitats through physical impact. Habitats may be severely damaged through ship grounding and ships have been known to collide with large marine mammals such as whales.

The tragedy that resulted from the MIT Solar 1 incident mentioned above is ominous of more such scenarios if no immediate and comprehensive measures are undertaken in regard to instituting ocean governance in national, and regional, waters. It boggles the mind and imagination to speculate on the damage if all of 2,000,000 liters of bunker oil cargo, instead of the reported 300 to 400 thousand liters, actually spilt into the marine environment. Or perhaps a vessel, one among thousands that transit through the country's seas annually, laden with other dangerous noxious and hazardous substances encounters any such perils of the sea or ship. The impact on health and human lives, on livelihood and the national economy especially fisheries and the tourism industry, and on the maritime and seafaring industry, might be impossible to quantify.

For the protection and preservation of its marine environment through the mitigation and prevention of pollution due to shipping activities, and for the maintenance of peace, good order and security of the country, it is herein proposed the designation of the entire Philippines archipelago as a Particularly Sensitive Sea Area (PSSA) under the International Maritime Organization (IMO). This would serve as cornerstone for regional ocean governance and maritime security under Part IX of the United Nations Convention on the Law of the Sea (UNCLOS) on enclosed and semi-enclosed seas.

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University Of Hawaii School of Law Library - Jon Van Dyke Archives Collection Maritime and Ocean Affairs Center Department of Foreign Affairs

Early Philippines Approaches to Ecosystem-based Management

The Philippines had much earlier formulated a governance concept for its internal waters, cognizant of its archipelago character. As early as the mid-1960s, the Philippines embarked on development programs that can be considered as precursors to an ecosystem based management scheme, although more biased toward developmental rather than conservation goals. In 1966, the Laguna Lake Development Authority (LLDA) was created under Republic Act 4850 (An Act Creating the Laguna Lake Development Authority) established, wherein Section 1 thereof enunciates as public policy, to wit:

" ... to carry out the development of the Laguna Lake region with due regard and adequate provisions for environmental management and control, preservation of the quality of human life and ecological systems, and the prevention of undue ecological disturbances,

deterioration and pollution. 11

This early approach was, however, more visionary than scientific, and further development and practical application of the concept was stunted until 1992 when a marine scientist, Dr. Angel C. Alcala, headed the Department of Environment and Natural Resources (DENR). The DENR then launched several projects that dramatically enhanced the protection and conservation of the marine environment through ecosystem-based management, starting with smaller ecosystems. The more significant of such projects are the Coastal Environment Program (CEP), and the Coastal Resources Management Program (CRMP). Certain other projects/programs of the national Government were likewise undertaken at the local (multi-provincial and multi-municipal) level such as the Lingayen Gulf Coastal Management Commission (LGCMC).

In 2003, the Maritime and Ocean Affairs Center of the Department of Foreign Affairs (DFA-MOAC)' began advocating measures relating to marine environmental protection as a possible mechanism to govern the national and regional waters. DFA-MOAC Secretary-General Alberto A. Encomienda presented a paper entitled "An Ecosystem-based Ecoregional Management for the

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Seas of East and Southeast Asia: A Proposed Approach" at the Workshop on Ecosystem-based Management held in Cairns, Australia on 16 July 2003. The Workshop provided the first opportunity for DFA-MOAC to present its concept of regional ocean governance under UNCLOS Part IX and adopting the large marine ecoregion/ecosystem (LMEE) approach, for the seas of Southeast and East Asia. At this time though, DFA-MOAC did not yet have much confidence in projecting the concept in terms of practical implementation of a wide-scale conservation and management of maritime areas for two reasons, to wit:

• the ecosystem/ecoregion management concept was in its infancy and not yet fully established nor universally accepted scientifically; and,

• prevailing resistance by maritime States to perceived creeps in maritime jurisdictional regimes that would curtail the exercise of freedom of navigation

Nonetheless, in the DFA-MOAC-Ied interagency consultations, the ecoregion/ecosystem concept was generally accepted as most appropriate in the country's setting as an archipelago and archipelagic State. Recent developments discussed below would validate this conceptual approach on effective ocean governance using ecosystem-based management in a large marine ecoregion (LME) setting.

In the same year, DFA-MOAC co-sponsored with the IMO the Regional Workshop on PSSAs in the Southeast Asia Region. The Workshop was held from 21 to 23 October 2003 in Manila and was attended by participants from ten (10) countries around Asia. The Workshop aimed to increase regional awareness on the PSSA concept, to provide an introduction on the procedures for establishing PSSAs, and to enhance national capacities of participating countries for the identification and establishment of PSSAs.

In July 2006, Secretary-General Encomienda presented a paper entitled UNCLOS-plus Design for Maritime Security in the Southeast and East Asia at the 19th Annual United States Pacific Command (USPACOM) International Military Operations and Law (MILOPS) Conference held in Bangkok. The paper is intended as a maritime

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University Of Hawaii School of Law Library - Jon Van Dyke Archives Collection Maritime and Ocean Affairs Center Department of Foreign Affairs policy projection of vital national interests of the Philippines as an archipelagic State. The Conference provided an opportunity for DFA-MOAC to present the concept of designating the Philippines archipelago as a PSSA to address in a comprehensive manner, concerns in the field of ocean governance through practical implementation of UNCLOS Part IX, albeit unilaterally at the outset, to guarantee regional maritime safety and security.

Recent developments on LME/Ecosystem-based ocean management

A recent favorable development in regard to ocean governance relevant to the situation of the Philippines, and the Southeast and East Asia maritime region as a whole, arises from the Prestige incident in the Atlantic seaboard of the European Union (EU), particularly in regard to the breadth of designated marine areas to be subject to protection measures. On 13 November 2002, the oil tanker Prestige, loaded with 77,000 tons of heavy fuel, broke in two while navigating in foul weather along the Iberian coast about 100 miles off Galicia, Spain. The incident adversely affected Spain's richest fishing grounds. In total, 915 kilometers of coastline and the entire Atlantic coastline of Galicia were closed to fishing and affected 90,000 people whose livelihood depended on the sea. The incident also caused long-lasting damage to the marine environment in the area. In 2004, six (6) EU States directly affected by the incident succeeded in having an expansive length of the sea area adjacent to the Atlantic coast, measuring about 1,090,000 sq. km., designated by IMO as a PSSA.

An earlier favorable development in regard to large marine protected areas relates to the case of the Great Barrier Reef (GBR), which measures approximately 2,000 kms. long and 250 kms. wide. 1 In November 1990, the GBR was designated by the IMO as the world's first PSSA. Among other protective measures, Australia successfully gained IMO endorsement in October 1991 for a scheme of compulsory pilotage for ships posing a potential environmental hazard in designated areas of the GBR PSSA. Unlike

1 The following is lifted from the Australian Maritime Safety Authority website (http://www.amsa.gov.au/Shipping Safety/Great Barrier Reef and Torres Str aitlGBR Review Report/Improving legislative powers.asp#3gen). Accessed 19 September 2006.

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University Of Hawaii School of Law Library - Jon Van Dyke Archives Collection Maritime and Ocean Affairs Center Department of Foreign Affairs most other compulsory pilotage schemes in the world, the GBR scheme operates in an area outside of internal waters. The imposition of a compulsory pilotage scheme, which is a derogation of the principle of innocent passage in territorial seas, was justified in regard to navigational hazards and potential harm to the environment from shipping incidents in specific areas of the GBR.

In 2005, the IMO approved the joint proposal by Australia and Papua-New Guinea to include the Torres Strait in the existing GBR PSSA and thus further enlarging the area coverage. Torres Strait is identified as a navigationally hazardous region with an environment vulnerable to harm from marine pollution, and which is important culturally and economically for local indigenous communities. Compulsory pilotage has been identified as a significant risk reduction measure in this region. This scheme compensates for the inability of Australia to impose a mandatory pilotage requirement on ships transiting the Torres Strait because of the UNCLOS provisions on transit passage of ships through an intemational strait. The above notwithstanding, not all the Torres Strait may be regarded as coming within the UNCLOS definition of an intemational strait connecting one part of the high seas or EEZ and another part of high seas or EEZ. The Prince of Wales Channel is the main navigable passage in the western part of Torres Strait immediately north of Cape York. The Channel passes between Goods, Hammond (Keriri) and Wednesday Islands.

The geographic location of Prince of Wales Channel appears to be unique in that it passes between two parts of Australian territory and the waters on either side of the Channel are internal waters. This geographic distinction may be sufficient to allow Australia to exercise greater control over shipping passing through the Channel that could include the ability to impose compulsory pilotage.

A more recent event is the declaration of President George W. Bush on 15 June 2006 of the Northwestern Hawaiian Islands as a marine national monument. The roughly 140,000 square miles of marine reserve under the Bush declaration is second only to Australia's Great Barrier Marine Park as the largest protected marine area in the world, and is about half of the total area of the maritime jurisdictions of the Philippines. The declaration encompasses a string of uninhabited islands that is said to support more than 7,000

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University Of Hawaii School of Law Library - Jon Van Dyke Archives Collection Maritime and Ocean Affairs Center Department of Foreign Affairs species of birds, fish and marine mammals; a quarter of which are unique to Hawaii. It also nurtures 70 percent of US tropical shallow water coral reefs and home to the endangered Hawaiian monk seal and other threatened species.

Added to the foregoing, and much closer to home, is the recent (since last year, 2005) IMO inclusion of marine environmental protection and coastal resource management to concerns relating to the Straits of Malacca and Singapore.

The acknowledged richness of marine biodiversity in the ,Philippines, the geographic and geological circumstances of the country composed ota very compact grouping of islands, straddling principal international sea lanes, and the demonstrated vulnerability of the archipelago to risks arising from merchant and naval shipping activities all point to an immediate need to initiate measures that would ensure the protection and preservation of the country's marine environment through the designation of the entire Philippines archipelago as a PSSA. The ultimate national and regional governance design, however, dictated by its natural geographical/geological configuration would be best served, as stated above, through practical implementation of Part IX of the 1982 UN Convention on the Law of the Sea (UNCLOS Part IX) on enclosed and semi-enclosed seas, in which a PSSA designation encompassing the entire maritime jurisdictions of the country is a principal component element.

The PSSA Concept

The IMO adopted on 01 December 2005 the Revised Guidelines for the Identification and Designation of PSSAs through Assembly Resolution A.982(24) wherein an area that is significant for "recognized ecological, socio-economic, or scientific attributes where such attributes may be vulnerable to damage by international shipping activities", 2 may receive special protection through IMO sanction. The guidelines include: ecological criteria, such as unique or rare ecosystem, diversity of the ecosystem or vulnerability to degradation by natural events or human activities; social, cultural and economic criteria, such as significance of the area as fishing

2 IMO Assembly Resolution A.982(24), par. 1.2.

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University Of Hawaii School of Law Library - Jon Van Dyke Archives Collection Maritime and Ocean Affairs Center Department of Foreign Affairs grounds, or for tourism and recreation; and scientific and educational criteria, such as biological research or historical value.

Identification and designation of a PSSA and the adoption of associated protective measures (APMs) require consideration of three integral components: (1) the particular attributes of the proposed area, (2) the vulnerability of such area to damage by international shipping activities, and (3) the availability of APMs within the competence of the IMO to prevent, reduce, or eliminate risks from these shipping activities. 3

To date, the IMO has designated eleven (11) PSSAs around the world. They are as follows:

1. The Great Barrier Reef, Australia (1990); 2. The Sabana-Camaguey Archipelago in Cuba (1997); 3. Malpelo Island, Colombia (2002); 4. The Florida Keys, USA (2002); 5. The Wadden Sea, Denmark, Germany, The Netherlands (2002) 6. Paracas National Reserve, Peru (2003); 7. Western European Waters, Belgium, France, Ireland, Portugal, Spain and UK (2004); 8. Torres Straits, Australia and Papua-New Guinea (2005); 9. Canary Islands, Spain (2005); 10. The Galapagos Archipelago, Ecuador (2005); 11. The Baltic Sea area, Denmark, Estonia, Finland, Germany, Latvia, Lithuania, Poland and Sweden (2005)

A PSSA designation is among a number of possible measures to preserve and protect the marine environment, as well as conserve and manage living resources, that are already being resorted to by the IMO in relation to its competence in safeguarding safety of navigation. It is a concept that was first considered way back in 1978 but gained greater appreciation and practical application only in the late 1980s and early 1990s. This time lag between proposition and implementation, needless to say, had to do with the traditional adversarial positions between coastal States and maritime (shipping) nations relating to any possible regulatory mechanisms that can be seen to impede the freedom of navigation. At this time,

3 IMO Assembly Resolution A.982(24), par. 1.5.

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University Of Hawaii School of Law Library - Jon Van Dyke Archives Collection Maritime and Ocean Affairs Center Department of Foreign Affairs however, PSSA designation is already generally accepted as a mechanism for providing protection to delicate or vulnerable sea areas especially from shipping activities, and expanding the scope of marine environmental protection measures beyond national jurisdictions.

PSSA designation, in varying degrees of maritime area coverage but tending towards eco-system or ecoregion approach towards marine environmental protection and conservation of coastal and marine resources conservation and management, has been the trend of the recent past. The Philippines archipelago, in a world setting, just happens to be a microcosm, concentrating in itself practically every aspect of ocean concerns and vulnerabilities. Thus a proposal for the entire archipelago to be protected on a holistic basis as a PSSA. Indeed, it seems obvious that the effective range of holistic protection should be the Seas of Southeast and East Asia, including the South China Sea, as well as the entire breadth of Asia's Pacific Ocean rampart, a series of archipelagos, namely Japan, Philippines, Indonesia and Papua-New Guinea, a virtual archipelagic continent. As above stated, UNCLOS Part IX is tailor made as the overall normative underpinning for regional maritime governance scheme which the Philippines can initiate through practical implementation starting with an archipelagic breadth PSSA.

On Archipelagic Sea Lanes

The Philippines has not designated archipelagic sea lanes (ASLs) under UNCLOS although original and still current thinking by local experts is that it is necessary for the peace, good order, and security of the State; that archipelagic sea lanes would facilitate tracking and management of shipping activities in archipelagic waters. DFA-MOAC, however, now takes the view that good order in archipelagic waters, and in the State itself, may be better served through the application of, and focus on, internationally accepted protection measures for the marine environment rather than designation of archipelagic sea lanes.

Moreover, under UNCLOS, archipelagic States have the obligation, thus: "(a)/1 ships ...enjoy the right of archipelagic sea lanes passage

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in such (archipelagic) sea lanes ... '14. In this regard, archipelagic States have the option to "designate (archipelagic) sea lanes ... , suitable for the continuous and expeditious passage of foreign ships ... through ... its archipelagic waters and the adjacent territorial sea"s. If, however, an archipelagic State does not designate archipelagic sea lanes, It •• .the right of archipelagic sea lanes passage may be exercised through routes normally used for international navigation's. Needless to say, the passage of foreign vessels through archipelagic waters presents myriad problems cutting across issues of sovereignty, national security, and environmental protection, not to mention applying, managing and monitoring the different transit regimes7 that can be resorted to by a foreign vessel, including State and naval vessels, navigating in internal and archipelagic waters and territorial seas of an archipelagic State.

Resort to APMs to govern passage through maritime jurisdictions of the Philippines might be a more practical arrangement for two reasons earlier alluded to: 1) the entire archipelago is an eco system or eco-region by itself, and 2) the Philippines archipelago is composed of very closely-grouped islands such that it is impossible to apply in its favor the technical parameters under UNCLOS for designation of archipelagic sea lanes. Under the UNCLOS regimeS, ships exercising archipelagic sea lanes passage may deviate by not more than 25 nautical miles to either side of axis lines defining designated archipelagic sea lanes. The Philippines, however, with its narrow straits and passages, cannot accommodate navigational corridors fifty (50) nautical miles wide without compromising the peace, good order and security of the archipelago. Moreover, transit passage through archipelagic waters cannot be confined to archipelagic sea lanes. Foreign vessels can still enter archipelagic waters or navigate anywhere in archipelagic waters, through the 9 exercise of innocent passage .

4 1982 United Nations Convention on the Law of the Sea (UNCLOS) Article 53 paragraph 2. 5 UNCLOS Article 53 paragraph 1. 6 UNCLOS Article 53 paragraph 12. 7 UNCLOS Articles 53 and 54. 8 UNCLOS Article 53. 9 UNCLOS Article 52 paragraph 1.

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To reiterate, UNCLOS transit rules through archipelagic waters is the best argument, in the peculiar and particular circumstances of the Philippines, in favor of the archipelagic PSSA proposition, rather than designation of archipelagic sea lanes. While this approach would add another layer of law and national rules and regulations to which international merchant shipping activities and naval operations could be subjected to, it would substantially simplify the marine environmental protection (MEP) process in the maritime jurisdictions of the Philippines that project to the South China Sea and its Pacific Ocean seaboard, and incorporate MEP concerns to the exercise of archipelagic sea lanes passage and other transit regimes. Objection to this proposition would be difficult to accept for after all, the designation of archipelagic sea lanes does not preclude instituting. rules and regulations within its archipelagic waters, if deemed necessary, for the protection of the marine environment and its living resources.

In the context of the PSSA Guidelines, APMs for PSSAs could include the following options 10:

• designation of an area as a Special Area under MARPOL Annexes I, II or V, or a SOx emission control area under MARPOL Annex VI, or application of special discharge restrictions to vessels operating in a PSSA • adoption of ships' routeing and reporting systems near or in the area, under the International Convention for the Safety of Life at Sea (SOLAS) and in accordance with the General Provisions on Ships' Routeing and the Guidelines and Criteria for Ship Reporting Systems • development and adoption of other measures (such as compulsory pilotage) aimed at protecting specific sea areas against environmental damage from ships

Consideration should also be given to the potential for the area to be listed on the World Heritage List, (as with Tubbataha Reef) declared a Biosphere Reserve, or included on a list of areas of international, regional, or national importance, or if the area is already the subject of such international, regional, or national conservation action or agreements. In some circumstances, a proposed PSSA may include within its boundaries a buffer zone, in

10 The following is lifted from IMO Assembly Resolution A.982(24), section 6.

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University Of Hawaii School of Law Library - Jon Van Dyke Archives Collection Maritime and Ocean Affairs Center Department of Foreign Affairs other words, an area contiguous to the site-specific feature (core area) for which specific protection from shipping is sought.

On SLOCs and Ships' Routeing

An early favored solution to the specific question of environmental hazards connected with tanker operations in the country, appearing in news reports on the Solar 1 incident, is the establishment of special "safe" routes for tankers. This is obviously a good safety measure which can be adopted among other specific measures in the PSSA context. Indeed, the establishment of Sea Lanes of Communications (SLOCs) and Ships' Routeing, which are also within IMO competence, can be a practical first step contributory to the designation of the archipelago as a PSSA. The Solar 1 incident makes it clear that defining SLOCs and ships' routeing in the country has now become more compelling and urgent. Domestic ship routeing, as with the suggested Marine Environment High Risk Area (MEHRA) designation, can be immediately implemented and later melded into the overall PSSA structure.

A Monitoring, Control and Surveillance (MCS) Infrastructure

A PSSA designation, however, would still be critically deficient in terms of achieving optimum maritime safety and security, a must in the unique archipelago configuration of the Philippines, without an overall governance technological nerve center - a Monitoring, Control and Surveillance (MCS) infrastructure. The MCS system must be comprehensive, fully-coordinated and integrated, one that is adapted to and designed, with a region-wide reach and coverage. Fully integrated and coordinated is largely self-explanatory, even on a regional scale. Comprehensive would refer to applications that impact on safety and security of navigation that would include Vessel Monitoring System (VMS), Vessel Traffic System (VTS), Vessel Traffic Separation and Management, Search and Rescue (SAR) and even Marine Electronic Highway (MEH) and charting. Such infrastructure can allay the real risks of ship collisions and consequent damage to and pollution of the marine environment. Such need is amplified by the increase in global maritime traffic

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University Of Hawaii School of Law Library - Jon Van Dyke Archives Collection Maritime and Ocean Affairs Center Department of Foreign Affairs density as well as ship size. It could also help prevent or minimize heavy losses of human lives from vessel accidents.

Furthermore, MCS can be adapted to new and evolving maritime safety and security applications such as relevant aspects of the implementation of the International Ship and Port Facility Security (ISPS) Code and in general, the Safety of Life at Sea (SOLAS) Convention, the International Maritime Dangerous Goods (IMDG) Code, and an Automatic Identification System (AIS) for ships. It can be used to enhance law enforcement capabilities to prevent illegal activities such as pilferage, illegal immigration, smuggling and armed robbery against ships. The MCS also has applications to marine environment protection (MEP) which would encompass fisheries and ocean resources conservation applications, as well as meteorology; all of which figure equally important into the uniqueness of the marine environment of the region, and interconnected exclusive economic zones (EEZs) of the seas of Southeast and East Asia, especially including the South China Sea.

A comprehensive, fully-coordinated and integrated MCS infrastructure, as seen from the foregoing, is therefore an essential and indispensable management tool in keeping the good order within the archipelago. The country, in the interest of addressing immediate concerns relating to an MCS infrastructure, may pursue this undertaking independently of the designation of the Philippines as a PSSA.

Normative basis for national and regional ocean governance

Projecting the concern on maritime safety and security to the region, the frantic activity happening in the region at this time to enhance maritime safety and security merely highlight the neglect, benign or otherwise, that this highly vulnerable and geo-strategic maritime region of the world has suffered from. The country, in this respect, is faced with a catch-up effort, where the obvious neglect of the past has made it the soft underbelly of the world maritime safety and security structure. In the Southeast and East Asia maritime region, maritime safety and security is no longer merely a matter of national or domestic concern, nor a purely technical shipping matter, but an international and socia-political issue that impacts on the effort to combat terrorism - the modern day hostis humanis generis, the

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University Of Hawaii School of Law Library - Jon Van Dyke Archives Collection Maritime and Ocean Affairs Center Department of Foreign Affairs common enemy of all mankind; a new strain of a "scourge of all mankind" (and lest we forget, maritime piracy, the historically original one, is still very much in our region and a continuing IMO concern).

The principal normative foundation for this proposed regional maritime security blueprint, as already suggested above, is 1 UNCLOS Part IX on enclosed and semi-enclosed seas \ a seemingly nondescript chapter in UNCLOS that directly addresses the peculiar and particular maritime concerns of the Southeast and East Asia maritime region. It provides for a holistic regional maritime governance mechanism that addresses all maritime concerns in a joint, collaborative and cooperative manner among all possible stakeholders, whether as coastaVregional States, extra-regional States, and international organizations/non-governmental organizations (NGOs). Article 123 thereof exhorts that all States bordering such seas "should cooperate with each other in the exercise of their rights and in the performance of their duties under this Convention". This is clearly broad enoug h to cover all aspects of cooperation relating to maritime safety and security. There is no limit to the kind of cooperation that can be pursued under this arrangement in all aspects of maritime concerns and ocean governance, starting with Marine Scientific Research (MSR) and MEP12. This desired wide ranging cooperation among all possible stakeholders is perhaps the reason why UNCLOS Part IX further suggests the creation of a regional maritime organization to supervise/oversee the conduct and range of cooperation 13, something the Philippines may take the lead for at a later stage.

[In this regard, the Philippines in early 2004, began initiatives starting with MSR within its territorial waters as a first step towards implementation of UNCLOS Part IX in a large marine ecoregion setting. The launch activity of this initiative is Exercise Luzon Sea (ELS), Phase I of which was held in March 2004 and covered the eastern coast of southern Palawan. On the bilateral front, the Philippines is undertaking with Vietnam a joint initiative in

11 UNCLOS Article 122 defines an "enclosed or semi-enclosed sea" as "a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States". 12 UNCLOS Article 123 (a) to (c). 13 UNCLOS Article 123.

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University Of Hawaii School of Law Library - Jon Van Dyke Archives Collection Maritime and Ocean Affairs Center Department of Foreign Affairs implementation of UNCLOS Part IX through the Philippines-Vietnam Joint Oceanographic Marine Scientific Research Expedition in the South China Sea (JOMSRE). RP-Vietnam JOMSRE aims at increasing understanding of the natural processes of the marine environment and resources of the South China Sea. The Philippines and Vietnam have also agreed to expand JOMSRE to include participation by the People's Republic of China, the Mekong Commission and certain ASEAN-member States.]

UNCLOS Part IX, in relation to UNCLOS Part IV on archipelagic States, would be suitably applicable to maritime Southeast and East Asia. Their implementation should be melded together, inasmuch as, as earlier pointed out, the region is comprised mainly of archipelagic States that at the same time are in a semi-enclosed sea situation. The two provisions are entirely new regimes in the Law of the Sea in its "progressive development" aspect, and suffer from critical gaps that need to be addressed in practice as a step towards perfectibility. Imperfect as they may be at this time, the two provisions together provide the ideal concept and mechanism for ocean management for the seas of Southeast and East Asia, and thus regional maritime security in all its aspects, including facilitating freedom, safety and security of navigation.

An automatically added feature to a regional ocean governance cooperation under UNCLOS Part IX is burden sharing. This would be between and among regional States but could involve non regional States as "other interested States" and international organizations (and, as posited above, even NGOs) if regional States invite them as participants 14. This implicit but compelled burden sharing arrangement would obviate any need to invoke UNCLOS 15 Article 43 , with its accompanying current controversies. In another vein, cooperation under Part IX could start with a "soft" approach as it would logically and necessarily begin with marine scientific research 16; and the development and transfer of marine

14 UNCLOS Article 123 (d). 15 UNCLOS Article 43. Navigational and safety aids and other improvements and the prevention, reduction and control of pollution. User States and States bordering a strait should by agreement cooperate: (a) in the establishment and maintenance in a strait of necessary navigational and safety aids or other improvements in aid of international navigation; and (b) for the prevention, reduction and control of pollution from ships. 16 UNCLOS Article 123 and UNCLOS Part XIII.

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University Of Hawaii School of Law Library - Jon Van Dyke Archives Collection Maritime and Ocean Affairs Center Department of Foreign Affairs technology17. In a regional ocean governance mechanism under UNCLOS Part IX, the latter would be compulsory inasmuch as majority of regional States in maritime South~ast and East Asia are developing countries.

18 As earlier suggested , the legal regime for archipelagic States under UNCLOS Part IV, in relation to Part IX on enclosed and semi enclosed seas, is not fully developed especially in relation to each other as demanded in the setting of the Southeast and East Asian seas. This situation poses gaps in operational requirements for naval vessels and shipping in general. In this regard, the perspective of the Philippines is that the regional ocean governance approach under UNCLOS Part IX should logically and for practical reasons be extended to the ocean management scheme for archipelagic waters and adjacent territorial seas of archipelagic States. This is so because archipelagic States, and archipelagos for that matter, are a microcosm of a group of coastal States in an enclosed or semi-enclosed sea. In the case of the Philippines, which is unique among archipelagic States, this is critically so because of its very closely-grouped islands.

In the above situation, therefore, protection and conservation concerns relating to the marine environment in an UNCLOS Part IX setting, naturally extends to archipelagic waters and territorial seas. An added threat, burden, and responsibility for archipelagic States relates to shipping activity, and this includes State and military vessels. Once again conjuring the regional maritime scenario, SLOCs, shipping activities and choke points are spread throughout the region. And UNCLOS in this regard is rather deficient or undeveloped to the detriment of archipelagic States especially in regard to peace, good order and security in its archipelagic waters, and in the protection of the marine environment.

The overall framework and its component elements discussed above would be complementary to implementing the 1982 United Nations Convention on the Law of the Sea (UNCLOS) to achieve a comprehensive, durable and lasting layer of maritime security in our region. This combination of normative bases can be called UNCLOS-plus i.e. a package consisting of UNCLOS Part IX

17 UNCLOS Part XIV. 18 At p.g supra.

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(subsuming Parts XIII and XIV) and Part IV and, in addition, the 19 measures aforestated .

Conclusion and Recommendations

The Philippines is a country unique in the world, on account of the following characteristics and geo-strategic circumstances:

• it is the quintessential coastal State in that no city or municipality is more than a hundred kilometers from the coast

• it is a mid-ocean archipelago, among a very few in the world, and therefore a seamless affinity/unity between land and sea, the very essence of an archipelago;

• among these very few mid-ocean archipelagos, the Philippines has the most closely-grouped islands, presenting daunting challenges relating to the transit of foreign vessels in its territorial and archipelagic waters in the exercise of freedom of navigation, and wherein all possible entry and exit points into and out of archipelagic waters have traditionally been used for international navigation;

20 • it has the highest marine biodiversity in the world , cradles the "coral triangle" and nurtures feeding and spawning grounds of the dugong (sea cow), butanding (whale shark), sea turtles and other endangered sea mammals and spawning grounds for high-value fish species such as tuna (the "tuna highway" criss-cross Philippines maritime jurisdictions );

• it straddles principal shipping lanes and thus most vulnerable to risks arising from shipping activities such as accidental or deliberate marine pollution; and,

19 At pp 10-13 supra. 20 Kent E. Carpenter and Victor G. Springer, "The center of the center of marine shore fish biodiversity: the Philippine Islands," Environmental Biology of Fishes (Springer), Vol. 72, No.4, April 2005: 467-480.

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• its geographic location in the region as well as geological configuration facilitates certain illegal activities such as piracy, other transnational crimes and even maritime terrorism.

In the above national and regional circumstances accompanying the Philippines situation, impacting on the country's vital national interests, a two-pronged approach is herewith proposed to achieve the desired overall maritime security for the peace and good order of the archipelago through safety and security of navigation and the conservation and management of its living marine resources. The twin elements of this maritime security strategy, which necessarily must be optimized through a regional dimension, are:

• a normative underpinning through implementation of UNCLOS Part IX on enclosed and semi-enclosed seas21 which obliges all States bordering such seas "(a) to coordinate the management, conservation, exploration and exploitation of the living resources of the sea; (b) to coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment; (c) to coordinate their scientific research policies and undertake where appropriate joint programmes of scientific research in the area; and, (d) to invite, as appropriate, other interested States or international organizations to cooperate with them in furtherance of the provisions of this article,,22; and

• a scientific underpinning to ocean and coastal resource conservation and management employing:

a. the large marine ecoregion/ecosystem approach, and

b. the "health examination for the sea" concept - (still under development, it is built on the idea that monitoring the "health" of the seas should be similar to the health examination of humans. The integrated estimation for the ocean health examination is composed of thirteen [13] items, a

21 Defined in note 11 supra. 22 UNCLOS Article 123.

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mix of biological, social and natural aspects of science. DFA-MOAC is currently engaging Japan on enhanced bilateral cooperation on effective resource monitoring and management of regional waters adopting this method, which is the brainchild of a Japanese marine scientist, Mr. Tetsuya Takahashi)

This policy proposition and thrust, despite the foregoing arguments in support of it, is nevertheless a very bold step. Pursuing it would be no easy task and shall demand time, patience, perseverance, not to mention tremendous resources - financial, technical, and human - in order to gain the necessary international acceptance. But then, all anticipated difficulties and resistance especially from maritime and shipping Powers has to do with perceived restrictions deemed to be contrary to their interests in regard to freedom of navigation. The Philippines for its part, must insist on a durable ocean management mechanism for the sake of maritime safety and security, its own and the region's, and for the benefit of the international community at large. Once again, the foregoing proposition is compelled by the peculiar status of the Philippines as an archipelagic State among archipelagic States, in a unique strategic setting. The point should never be lost in this endeavour, that world events and developments, scientific and legal (policy), supports this policy thrust. If protective mechanisms for the marine environment and its resources in a large marine ecoregion is allowable/acceptable in remote ocean areas, such as the Great Barrier Reef and the Northwestern Hawaiian Islands, the more it should be a necessity in the context of the Philippines archipelago, and the Southeast and East Asia maritime region, where elements relating to maritime and marine threats and risks are in situ, and indeed a matter of vital national interest.

It is clear from all the foregoing that this national and regional ocean governance policy proposition is easier enunciated than done. The policy aspect, intricate and complicated as it already seem to be, faces even more daunting prospects in regard to practical implementation. Nevertheless, whatever challenges may have to be addressed on the practical side, considering the threats and risks in a seemingly increasingly asymmetrical maritime security/defense scenario, and the specific vulnerabilities of the Philippines and the maritime region encompassing the interconnected semi-enclosed

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University Of Hawaii School of Law Library - Jon Van Dyke Archives Collection Maritime and Ocean Affairs Center Department of Foreign Affairs seas of Southeast and East Asia, there should be no question on whether this comprehensive, norm-based, and scientifically supported policy thrust is doable or not; it has to be done. It is accepted that the practical implementation part cannot be done in one fell swoop, this would not be doable. This is the reason and purpose for the building-block approach herein suggested - with a Presidential Proclamation on the Philippines as a LME protected area, establishment of MEHRA and domestic ship routeing as initial and immediate stand alone projects which, alongside a medium term goal for PSSA-designation, would be the component elements of the overall UNCLOS normative scheme, to wit: Parts IV, IX, XIII and XIV.

To conclude, the archipelagic character of the country, the geographic and geological configuration of the region, the extremely delicate marine biodiversity in the country, and the nature and character of domestic, regional and international merchant and naval shipping activities obtaining within the country's maritime jurisdictions and in the region as a whole, and compelled by the need to prevent damage to the environment as a consequence of shipping activities including accidents and/or willful acts of pollution, the Philippines needs to initiate measures that would ensure the protection and preservation of the country's marine environment through the designation of the entire Philippines archipelago as a PSSA, as a component element in the implementation of UNCLOS Part IX. To this end, the following action steps are herewith recommended:

1. For the DFA-MOAC country team on maritime safety and security to be comported into a national task force composed of representatives from national government agencies, local government units, non-government organizations, the private sector and other stakeholders that would jointly undertake work towards the acquisition 'of technical data in preparation for submission to IMO of a proposal on the designation of the entire Philippines archipelago as a PSSA. Data generated would also be the necessary basis for immediate implementation of domestic ship routeing, MEHRA designation and even MCS;

[For a start, over a year ago and thus well before the MIT Solar 1 incident on 11 August 2006, DFA-MOAC engaged

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the Oceanfriends Foundation, Inc. a local NGO whose 23 President is former DENR Secretary Dr. Angel C. Alcala , in a project to make a comprehensive and coherent . canvass of existing marine protected areas (MPAs) in the country. The immediate aim of the project is to put together data on existing MPAs all over the country. The original rationale for this project was to make information available that will enable a wide range of interested parties such as scientists, government, shipping companies and other stakeholders to: evaluate socio economic effects of protection, use data for development planning, avoid pollution and mitigate natural disasters, conserve the marine environment and natural resources, and find ways to establish MPAs through networking of specific oceanographic regimes. This would already serve as a starting point for data-gathering for the purposes mentioned above.]

2. Undertake the following urgent and immediate preliminary projects that can stand alone regardless of events relating to the Philippines application for the PSSA designation:

• a Presidential Proclamation, similar to the Bush Proclamation that created the Northwestern Hawaiian Islands Marine National Monument, could immediately be issued declaring the entire Philippines archipelago as an MPA and adopting the highest degree of MEP measures currently available and in accord with international practice. DFA-MOAC is taking the lead in this effort and expects to come out with a draft Executive Order on this proposal within the next few weeks, which hopefully can be officially issued by the President soonest possible. This would serve as signal of the formal beginning of the national PSSA process, and indeed a national policy thrust towards implementation of UNCLOS Part IX;

• Review and rationalize existing national capabilities and adopt a national action plan for the establishment of a comprehensive, fully-coordinated and integrated

23 See also p.3 supra.

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MCS infrastructure outsourced to the private sector for assurance of continual maintenance and upgrading;

• the designation of domestic ship routeing, and charting;

• establishment of Marine Environmental High Risk Areas (MEHRAs) similar to those in the United Kingdom, based on sound environmental and maritime considerations.

3. Conduct a survey of, and formulate recommendations relating to national technical and financial capabilities, especially in relation to capacity building; and,

4. Explore burden-sharing in all possible modalities, specifically:

• under UNCLOS Article 43 on navigation safety, and the prevention, reduction and control of pollution in straits used for international navigation, • UNCLOS Article 123 on cooperation of States bordering enclosed and semi-enclosed seas, • UNCLOS Part XIII on marine scientific research, • UNCLOS Part XIV on the development and transfer of marine technology, • other cooperative or joint undertakings with adjacent or contiguous States bilaterally or regionally

A Historical/Socio-Cultural Postscript

From the inception of the awareness of the Filipino people as a nation and the birth of that nation as a State, the archipelago/archipelagic concept, i.e. the unity of land and water, had always abided in its collective consciousness. The Philippines, a unique geological configuration as a mid-ocean archipelago, seeking to govern itself under such socio-cultural/economic and security parameters to the optimum, was unable to project this archipelagic consciousness because of opposition from maritime Powers whose main interests were in the unbridled exercise of the freedom of the seas and navigation. The Philippines national

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interests as an archipelagic State located in a most geo-strategic maritime region in the world, would inevitably directly clash with those interests.

The first national effort, Phase I, in building the Philippines archipelagic house was to gain international acceptance of the concept (or doctrine) of the archipelagic State. This has been done through the intellectual brilliance and unflagging effort of the Philippines UNCLOS team (whose participation encompassed UNCLOS I, II and III, spanning 1958 up to 1982) led by then Senator Arturo M. Tolentino, who can rightly and justifiably be called the "Father of the Archipelagic State Doctrine". What was then a mere concept/doctrine which the Philippines, a tertiary-grade Power and alone in the world at the time, formulated and shepherded under an extremely difficult international environment, is now and international law. The battle was finally won, with the international legal regime of the archipelagic State enshrined in the 1982 UNCLOS. There are now sixteen (16), thus far, other mid-ocean archipelagos that have declared themselves as archipelagic States under UNCLOS.

While the regime of the archipelagic State increasingly found its way into conventional international law in its progressive development aspect, the preference of individual national interests, nevertheless, still prevails in regard to its interpretation and implementation. Hence, the Philippines national effort at this time must be focused on perfecting the regime through international practice, wherein the Philippines being the classic archipelagic State, may once again have to take leadership.

The foregoing policy proposition would be Phase II, the practical implementation phase in building the country's archipelagic house which would most likely be the practical model for existing and future (there are other archipelagos which have not declared themselves archipelagic State, or simply other archipelagos) archipelagic States in further improving the international law regime in its favor. And in keeping with the times, the Philippines can even design and build its own archipelagic homeland security based on this.

There is no delusion that the country is once again, as with Phase I, embarking on "a long, twilight struggle... year-in and year-out" (to borrow words from President John F. Kennedy) in this regard to circumscribe essential requirements to meet vital national interests.

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