Clarifying and adapting vessel transit regimes for an AEC 2015 and beyond
– a core regional maritime insecurity concern
Alberto A. Encomienda, balikBalangay
Introduction : Vessel transit passage regimes under the UNCLOS – an international legal framework resulting in a regional maritime conundrum
Vessel transit passage regimes under the 1982 United Nations Convention on the Law of the Sea (UNCLOS) are maritime security issues, and key issues and challenges, in the context of a humongous regional sea area that is the seas of ASEAN and the Central Indo-Pacific sharing “characteristic regional features” (UNCLOS Article 197). They are issues and concerns on account of a hodge-podge and jumbled politico-security, economic, and socio-cultural factors such as overlapping sovereignty/sovereign rights claims among regional countries, a competition for marine resources and energy, protection of the marine environment and biodiversity, the health and livelihood of coastal communities, and freedom of navigation. A late developing issue has to do with vessel transit passage and the conduct of marine scientific research and hydrographic surveying. These are issues exacerbated in the context of a very close geographical and marine geological quarters that vessels are operating around. Unless properly managed, vessel transit passage in the seas of ASEAN and the Central Indo-Pacific raises maritime issues and concerns with implications that straddle the three (3) pillars of AEC 2015; with defining impacts on regional integration and consolidation in regard to maritime communication. Addressing the foregoing regional non-traditional maritime security concerns, however, lacks coherence in overall legal framework and policy implementation that is appropriate to the regional situation looking to AEC 2015, and beyond. This is a hashtag concern for ASEAN Vision 2025 constructing maritime connectivity.
It is in the UNCLOS as conventional and progressive development of international law that vessel transit regimes are now defined, and where customary international law of the sea have been incorporated as codification. In the seas of ASEAN and the Central Indo-Pacific, however, UNCLOS vessel transit passage regimes have introduced controversies instead of clarifications, in such instances as, for example, activities of foreign vessels in the Exclusive Economic Zone (EEZ), the conservation and exploitation of marine resources, the protection of the marine environment and biodiversity, and the safety and security of navigation. In this maritime region of the world, a rationale and purpose for the UNCLOS and an expressed desire among States Parties, a compelling regional ocean governance necessity, have been met with frustration and thus non-realization. [UNCLOS Preambular Paragraph 4 – Recognizing the desirability of establishing through this Convention with due regard for the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment.] To be fair to the UNCLOS however, the Constitution of the Ocean, concerned regional State Parties does not seem to have given it sufficient attention it deserves in regard to ocean governance as a collective and cooperative undertaking.
In regard to the relevance and primordial importance of the UNCLOS in regard to vessel transit passage regimes, it bears highlighting that the regional maritime area coverage that is the seas of ASEAN and the Central Indo-Pacific, a large sea area that encompasses the archipelagic waters of the three (3) largest archipelagic States is a virtual archipelagic continent surrounded by interconnected enclosed/semi-enclosed seas and archipelagic seas, and traversed by densely trafficked international and regional shipping arteries. It is a regional sea area where the UNCLOS is severely tested in regard to particular ocean governance modalities that are contained at Part IV on the regime of the archipelagic State, in relation to Part IX on the regime of enclosed and semi-enclosed seas; and the impacts of shipping activities and vessel transit rights. The varying perceptions, despite the UNCLOS, relating to rights of transit passage for foreign vessels in the foregoing situation have clear implications on maritime connectivity essential to AEC 2015 integration and consolidation as suggested.
In this maritime region as above described, the age-old, tradition-bound and unwritten (customary) principle of freedom of navigation has been redefined or qualified in regard to transit passage of foreign vessels under a variety of maritime jurisdictional regimes which are recently established under the UNCLOS. It is a situation where customary rules relating to the uses of the sea, especially free navigation, have recently seen a balancing of maritime stakeholder interests through “progressive development” of international law (UN Charter Article 13 (a) and the UNCLOS at Preambular paragraph 8). Furthermore, taking a leaf from the 12 July 2016 ruling of The Hague Arbitral Tribunal in the compulsory arbitration case brought by the Philippines against China, conventional international law (UNCLOS) trumps customary international law of the sea especially in its historical implications; altogether erasing them forever and starting a clean slate. In the foregoing aspects and other related concerns, to highlight the regional maritime scenario as described earlier, the times and circumstances call for constructing a suitable and appropriate regional ocean governance scheme promoting maritime connectivity essential to AEC 2015 integration and consolidation; and thus an eventual ASEAN-led joint and cooperative undertaking among regional countries.
It must be noted, however, that such a cooperative regional joint undertaking as above suggested, towards a suitable governance regime for the seas of ASEAN and the Central Indo-Pacific is further complicated by the existence of political flashpoints such as in the South China Sea situation. This, and other latent or potential jurisdictional conflict situations elsewhere in the maritime region, have hamstrung instituting an appropriate regional ocean governance mechanism, even a rules-based general prescription under the UNCLOS but particularly at Part IX thereof. The appropriate legal and scientific framework relevant to addressing regional vessel transit issues and operational traffic arrangements despite the existence of political issues affecting the region or precisely because of such, would be an UNCLOS Part IX legal/scientific framework. Indeed, instituting collective and cooperative regional ocean governance could instill a sense of cooperation among regional States that could expand to other regional issues of common/mutual concern and help alleviate political tensions in the region. A suitable model and template for consideration in the maritime situation of the seas of ASEAN and the Central Indo-Pacific is the EU Integrated Maritime Policy (IMP).
Understanding the nature of the regional vessel transit passage controversies
A redefined (or clarified) transit passage regime under the UNCLOS for the seas of ASEAN and the Central Indo-Pacific is not a mere subject of academic interest, it continues to carry serious implications in regard to traditionally contending politico-security, economic and socio-cultural interests between the so-called maritime (shipping) nations as against coastal States to which the greater number of ASEAN and Central Indo-Pacific countries identify with. And on the matter of transit passage of vessels and shipping activities in general, a new area of balancing interests relates to freedom of navigation, which has become a geo-political play of maritime Powers, and the rights and duties of coastal States in the EEZ which is about geo-economics and assertiveness of sovereign rights in regard to the sustainable management and conservation of marine and seabed resources, and the protection of the marine environment and biodiversity. A narrowed-down concern on transit passage of foreign vessels in the EEZ, however, is the simpler issue in that it has to do with differing interpretations of UNCLOS provisions. A cross-cutting and highly complicated bundle of issues relate to UNCLOS vessel transit regimes and their application in the infinitely complicated marine geology and geomorphology of the seas of ASEAN and the Central Indo-Pacific, and varying interpretations or characterizations of marine geological features and jurisdictional entitlements under UNCLOS, in the further context of sovereignty/ sovereign rights claims among regional countries.
In regard to differing interpretations relating to activities of foreign vessels in the EEZs of States bordering the South China Sea; it might be useful to take account of resource materials on the subject such as the results of an informal workshop sponsored by the Ocean Policy Research Foundation (OPRF) entitled “EEZ Group 21 Workshop on the Regime of the Exclusive Economic Zone” held in September 2005 in Tokyo (timeline check: very early on, just a decade after entry into force of the UNCLOS). This would serve as early awareness and eyeopener, and clearer view of controversies in regard to vessel transit and activities of foreign vessels in the EEZ from stakeholders’ perspectives of regional States and those of other interested extra-regional States (UNCLOS Article 123) in the situation of the seas of ASEAN and the Central Indo-Pacific. A more recent resource material involving geo-political quarrels between major Powers but essentially relating to maritime jurisdictional issues is a 300-page study released on May 2017 by the Centre of Strategic and International Studies (CSIS) based in Washington D.C. entitled “Countering Coercion in Maritime Asia: The Theory and Practice of Grey Zone Deterrence”.
Among UNCLOS vessel transit passage regimes - deciphering archipelagic sea lanes passage
This paper mainly addresses one aspect of vessel transit passage obtaining in the seas of ASEAN and the Central Indo-Pacific, but very significant in regard to the exercise of freedom of navigation in the maritime situation of the regional sea. The regional maritime situation is such that every vessel transit regime under the UNCLOS are applicable all over the regional sea, and presenting a very complicated vessel traffic situation traversing varying maritime jurisdictional regimes subject of various sovereignty/sovereign rights claims as abovestated. Complicated as the regional maritime situation is, a particular problem concerns the exercise of archipelagic sea lanes transit passage where there are issues in regard to naval (military) and fishing vessels, with highly strategic implications in the former instance and economic concerns in the case of the latter. The exercise by foreign vessels of the right of unobstructed archipelagic sea lanes passage is a new and undeveloped vessel transit passage regime under the UNCLOS. As such, there is no customary international law nor travaux preparatoire that could aid interpretation to resolve controversies or ambiguities. The mutatis mutandis clause in UNCLOS Article 54 does not offer much clarity, and neither would the amendatory provisions in the UNCLOS be a practicable/practical resort.
In other words, there are gaps in the UNCLOS regime on archipelagic sea lanes passage that may be addressed only through developing a regional customary international law through State Practise. In the extraordinary context of the seas of ASEAN and the Central Indo-Pacific with three (3) of the largest archipelagic States i.e. Philippines, Indonesia and Papua-New Guinea, customary practise is the only avenue for further development of the regime of archipelagic sea lanes passage. Admittedly, this is easier said than done considering the contending issues earlier described. State Practise, however, involving the three (3) biggest and adjacent archipelagic States sharing the regional sea area, would be the only avenue to resolve archipelagic transit passage issues even if it amounts to a regional customary international law. Needless to say, this recourse requires the acquiescence of other regional countries.
A controversial element in the UNCLOS definition of archipelagic sea lanes passage concerns the meaning or interpretation of the term “normal mode”, problematic in regard to naval (military) and fishing vessels. This is a situation confronting all three archipelagic States embraced within the seas of ASEAN and the Central Indo-Pacific which are adjacent to each other, and thus highly significant on account of strategic import and sheer coverage of archipelagic seas in relation to comprehensive regional ocean governance. For the specific situation of the Philippines, archipelagic sea lanes passage is a matter of vital national concern and core interest impacting as it does in a most critical way on the overall peace, security and good order of the archipelago on account of special circumstances, as shall be explained later. In the interest of a fair appreciation of the Philippines situation that at the outset would define its policy thrust in regard to archipelagic sea lanes passage, concern relating to the marine environment and resources and the impact of shipping activities in its archipelagic waters, is herein attempted to be illustrated and highlighted. Needless to say, the special concerns of the Philippines has extrapolated relevance to the other two archipelagic States aforementioned and in many ways a general concern in the entire Central Indo-Pacific sea area.
The Philippines archipelagic State; characteristic national features and confronting threat situation in its maritime jurisdictions
In regard to the special circumstances of the Philippines as an archipelagic State, the general and overall proposition is that it is a quintessential coastal State in that not a single town or city in the country is more than a hundred kilometers from the coast, and thus highly susceptible and vulnerable to natural and human-caused disasters including adverse effects of climate change, and maritime incidents or accidents. Sixty-two of its seventy-one provinces are coastal (78%), and almost all major cities are located along the coast. Of 1,541 municipalities, 832 are coastal (54%). More than a coastal State, however, the overarching political attribute of the Philippines is being an archipelagic State. An archipelagic State as defined under the UNCLOS is “a State consisting of a group of islands, including parts of islands, interconnecting waters and other natural features which form an intrinsic geographical, economic and political entity, or which historically have been regarded as such”; and can be “constituted wholly by one or more archipelagos and may include other islands” (UNCLOS Article 46) subject to a ratio of the area of the water to the area of the land at between 1 to 1 and 9 to 1 (UNCLOS Article 47). In the case of the Philippines the water to land ratio is 1.9 to 1, in itself descriptive of marine geological/geomorphological characteristics.
With the above graphic definition in mind, the Philippines is distinct from other archipelagic States in that it is comprised of a very compact grouping of islands and other geological features, restricting ship movements and management in a densely trafficked regional sea area. Another distinct special characterization of the Philippines as an archipelago refers to the threat situation from shipping activities. It is said to be the “center of the center of marine biodiversity” having the highest in the world, and hosts the greater part of the “Coral Triangle” – an ocean space recognized by marine scientists as having among the highest degree of biological biodiversity. One of only two (2) double barrier reefs in the world is found in the Province of Bohol. The country’s surrounding seas also nurtures feeding and spawning grounds of the dugong (sea cow), butanding (whale shark), sea turtles and other endangered marine mammals, and high-value commercial fish species such as tuna. The “tuna highway” traverses Philippines maritime jurisdictions that includes spawning grounds of certain species. Whales and other cetaceans migrate seasonally to the inland waters of the country. Coelacanth and the Mega-mouth shark are occasionally found in its waters as other extremely rare marine species. Recently, marine life believed to be previously undiscovered were found in the Celebes Sea, south of the archipelago.
With the country’s extraordinary geographic/geological attributes and circumstances as an archipelago above described, the Philippines is criss-crossed by shipping lanes - domestic, regional and international. It is therefore burdened with risks associated with merchant shipping and naval activities, with direct implications on the overall peace, good order and security of the archipelago. The impact of maritime incidents/accidents on coastal communities is aggravated in the special case of the Philippines archipelago where sixty two per cent (62%) of the population are located in coastal areas, and whose health and livelihood is dependent mainly on coastal and marine resources, and tourism activities. This vulnerability situation is best depicted in the M/T Solar 1 oil spill incident in 2006 which adversely affected human lives and health, livelihood and the national economy, particularly the fisheries and tourism industry. The domestic oil tanker spill, minimal compared to far worse oil tanker incidents around the world, affected 20 communities in 4 municipalities in the island of Guimaras, and a threat to 27 communities in Iloilo City and 17 others in the Province of Negros Occidental. The initial economic valuation of the environmental, economic, and ecological damage to the country, excluding compensatory damages in terms of livelihood losses, is estimated at Php 9 Billion. Within the country, 307 oil spill incidents with varying disaster impacts have been reported to occur within its archipelagic and internal waters in the past 32 years, averaging to ten (10) such incidents per year.
Sea lanes through maritime jurisdictions of the Philippines normally used for international navigation
The Philippines is an archipelago of more than 7,100 islands located in the western Pacific Ocean between latitudes 215’N and 4°23’N, and longitude 116°00 E and 127°E. The archipelago is surrounded by three prominent bodies of water: the Pacific Ocean to the east, the South China Sea to the west and north, and the Celebes Sea in the south. The Philippines maritime jurisdictions cover a total marine area of 2,200,000 square kilometers, including the exclusive economic zone (EEZ); its coastline extends up to 36, 289 kilometers (FAO Fishery and Aquaculture Country Profiles at http://www.fao.org /fishery/facp/PHL/en).
There are seven straits (routes) normally used for international navigation within the maritime jurisdictions of the Philippines. These are the Babuyan Channel, Balintang Channel and the Luzon Straits in the north; the San Bernardino and Mindoro Straits in the mid-section of the archipelago; and Surigao and Balabac Straits in the south. For international navigation, they serve as the only entry and exit points through the archipelago, and are interconnecting points towards and between the South China Sea and the East China Sea, the Straits of Malacca and Singapore, the Indian Ocean and the Pacific Ocean. Vessels traversing these mostly narrow and constricted passage routes are clear and ever-present danger to two of the most delicate marine biodiversity areas in the Philippines and the world: (1) the Tubbataha Reef, a world heritage site; and (2) the Verde Island Passage Marine Corridor, known as the center of shorefish biodiversity, a world hotspot of marine biodiversity; and not to mention the Scarborough Shoal and the Benham Rise (which qualifies to be a world heritage site, a second for the Philippines after Tubbathaha Reef). In another and wider shipping and vessel transit threat scenario confronting the archipelago, more than half of the world’s oil tanker tonnage, estimated to contain 15.2 million barrels of oil per day, pass through the straits of Malacca and Singapore, and the Sunda and Lombok Straits (Indonesia), with the majority continuing on to the South China Sea and the Philippine Sea, hewing very dangerously within the maritime jurisdictions of the Philippines. A Torrey Canyon, Exxon Valdez or Prestige II maritime incidents/accidents are waiting to happen with incalculable damage to the archipelago and the larger maritime region.
UNCLOS transit regime through archipelagic waters
An archipelagic State is under obligation pursuant to the UNCLOS to allow foreign vessels the exercise of transit rights through its archipelagic waters in a continuous, expeditious and unobstructed manner, to wit: (1) innocent passage (UNCLOS Article 52); and (2) archipelagic sea lanes passage (UNCLOS Article 53). In the aforestated vessel transit regimes, there are accompanying respective rights and obligations on the part of transiting foreign vessels and those of the archipelagic State, generally summarized and distinguished as follows, among others :
- Under the regime of the archipelagic sea lanes passage, foreign vessels traversing archipelagic waters can operate in their normal mode (UNCLOS Article 53(3)), whereas in the exercise of innocent passage certain conditions apply mainly relating to activities inconsistent with the peace, good order or security of the coastal State (conditions, however, that also apply to archipelagic sea lanes passage).
- Innocent passage may be temporarily suspended by an archipelagic State in specified areas “essential for the protection of its security” (UNCLOS Article 52 (2)); but under no circumstance can archipelagic sea lanes passage be suspended, although a substitution of sea lanes is allowed when “circumstances require” (UNCLOS Article 53 (7) ).
- In the designation of sea lanes for innocent passage, as well as in the inclusion of “channels customarily used for international navigation”, an archipelagic State is merely required to take into account the “recommendation of the competent international organization” (UNCLOS Article 22 (3)).
- In the designation of archipelagic sea lanes, such must be suitable for continuous and expeditious passage and shall include all normal routes for international navigation; the archipelagic State is obliged to “refer” its proposal to the competent international organization for adoption.
Designation of archipelagic sea lanes, the exercise of transit rights of foreign vessels (and aircraft); salient points
- Defining the transit regime - The right of archipelagic sea lanes passage for foreign vessels is a new transit regime that accompanies the regime of the archipelagic State established under UNCLOS Part IV. It is defined as “the exercise in accordance with the Convention of the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone” (UNCLOS, Part IV, Article 53(3)). An archipelagic State has the obligation to ensure that “(a)ll ships and aircraft . . . enjoy the right of archipelagic sea lanes passage in such (archipelagic) sea lanes . . . (UNCLOS Article 53 (2)).
- Designating archipelagic sea lanes - Archipelagic sea lanes must be suitable for continuous and expeditious passage, and “. . . shall include all normal passage routes used as routes for international navigation” (UNCLOS Article 53 (4)). Archipelagic sea lanes are to be defined by a series of continuous axis lines from the entry points of passage routes to the exit points (UNCLOS Article 53 (5)). Foreign vessels in exercise of archipelagic sea lanes passage should not deviate more than 25 nautical miles to either side of such axis lines during passage (UNCLOS Article 53(5)).
- Procedural aspects - Proposals for designation of archipelagic sea lanes must be referred to the competent international organization for adoption (UNCLOS Article 53 (9)). The International Maritime Organization (IMO) has been identified as such international organization with the technical competence to consider proposals for designating archipelagic sea lanes. In 1998, the IMO adopted the General Provisions for the Adoption, Designation and Substitution of Archipelagic Sea Lanes (GPASL) (IMO Doc MSC 69/22/Add.1).
- # Non-designation of archipelagic sea lanes - Where an archipelagic State has not designated archipelagic sea lanes, “. . . the right of archipelagic sea lanes passage may be exercised through routes normally used for international navigation” (UNCLOS Article 53 (12)). The Philippines have not submitted a proposal to the IMO for the designation of archipelagic sea lanes. In exercising of the right of archipelagic sea lanes passage, foreign vessels (and aircraft) may therefore use any of the seven (7) entry and exit points through archipelagic waters of the country as abovementioned, which, by circumstance of geography and marine geology, would be the same and only entry and exit routes whether for the exercise of archipelagic transit passage or innocent passage.
Archipelagic sea lanes designation of Indonesia; a case study
Indonesia, an archipelagic State adjacent to the Philippines, submitted its proposal to the IMO for the designation of archipelagic sealanes (IMO Doc MSC, Res No. MSC 71) on 30 August 1996 (timeline check – before the IMO issued the GPASL). It is the first, and to date, the only archipelagic State to make a submission. The IMO, however, in its consideration of the Indonesian submission stated that the proposal is only a “partial archipelagic sea lanes proposal”, a characterization which is not explicitly mentioned in the UNCLOS but later defined in the IMO GPASL as a “proposal which does not meet the requirement to include all normal passage routes and navigational channels as required by the [Convention]” (IMO Doc MSC 69/22/Add. 1). The archipelagic sea lanes proposal as submitted by Indonesia to the IMO was for three north-south routes. It did not include normal routes for the east-west passage, and in which case the right to archipelagic sea lanes passage would still apply in all other “normal routes for international navigation” in addition to the three (3) north-south routes approved by the IMO. It is worth noting that the three (3) north-south archipelagic sea lanes of Indonesia connect to the archipelagic seas of the Philippines.
The IMO characterization of the Indonesian proposal as “partial” would negate a perception or presumption that archipelagic States, in designating archipelagic sea lanes, have a “leeway” to define and confine foreign vessels exercising the right of archipelagic sea lanes passage to within designated archipelagic sea lanes, to ensure “continuous, expeditious and unobstructed transit”. The Indonesian case would also call awareness on the part of the Philippines about some concerns in its own case relating to the technical parameters in regard to continuous axis lines and allowable navigational deviations. Even without the aid of maritime charts for close examination, these requirements would be almost impossible to apply in the situation of the Philippines. Firstly, the use of a series of axis lines to designate archipelagic sea lanes had differing interpretations and still seemingly falling short of sufficient guidance despite GPASL. It must be noted in this regard that the GPASL are only “general provisions”, essentially “guidelines” that could invite additional requirements for the actual submission.
Secondly, and related to the first point on foreseen difficulties in designating archipelagic sea lanes, there is also the matter of accommodating in its case the UNCLOS prescription requiring a 50 nautical-mile-wide navigational corridor in a situation where the islands, islets, shoals and reefs composing the archipelago are mostly closely grouped together. Moreover, there is the hanging issue of possible “substitutions” of archipelagic sea lanes; there simply is no room for such recourse in the marine geological configuration of the Philippines archipelago. The direct impacts on the good order, peace and security of the Philippines archipelagic State are patently clear. A third consideration would be the prolonged effort and process as happened in the Indonesian case, in securing IMO approval, not to mention the cost. In the case of the Philippines, as shall be argued later, it might be better overall not to designate archipelagic sea lanes (to economize on national resources and diplomatic effort, so to say) and simply allow for the exercise of archipelagic sea lanes passage through all normal routes within the archipelago traditionally used for international navigation, which are in any case the limited possibilities. Designation of archipelagic sea lanes is, simply put not a feasible policy option for the Philippines. The focus shall then be to immediately construct an appropriate ocean governance system with protective and monitoring measures on the marine environment and resources, and thereby to facilitate vessel traffic whether domestic, regional or international.
For the Philippines archipelago, a new vision for a protective equalizer against shipping activities
Thenceforth, the “rules of the road” on international navigation have always been in favor of shipping, especially pre-UNCLOS. It was only with the advent of the UNCLOS, as “progressive development” of the international law of the sea, that the notion of protection of the marine environment and resources was factored into shipping activities. This thrust was further developed under the IMO, having been identified as “the competent international organization” in regard to safety and security of navigation. Under this UNCLOS-influenced enhanced competence, the IMO established a program for designating Particularly Sensitive Sea Area (PSSA), with other protective measures (Associated Protective Measures or APMs) to preserve and protect the marine environment in relation to shipping activities. It is a notion that was first given consideration by the IMO in 1978 but gained greater appreciation and practical application only in the late 1980s and early 1990s. This was almost in tandem with the progressive development of the UNCLOS, and protection of the marine environment can therefore be treated as having assumed the character of a general principle of international law. The time lag between proposition and implementation of the IMO PSSA program needless to say, had to do with the traditional adversarial positions between coastal States and maritime (shipping) nations relating to regulatory mechanisms that can be seen to impede the exercise of freedom of navigation.
As above suggested, PSSA designation in this ecology-conscious modern world is already generally accepted as a science-based mechanism under international law for providing protection to delicate and vulnerable sea areas especially from shipping activities, and expanding the scope of marine environmental protection measures even beyond national jurisdiction. A PSSA designation, in varying degrees of maritime area coverage but tending towards ecosystem or ecoregion approach for marine environmental protection and coastal/marine resources conservation and management, has since been the trend. As shall be seen later, it is towards this modern-day ocean governance principles and direction that the Philippines seeks refuge and protection for itself. It is national self-defense as an archipelago-wide National Marine Park; the National Monument of the Philippines that is in so many ways far more significant than the Papahanaumokuakea national monument of the United States of America recently declared a PSSA. For one, the Papahanaumokuakea is in the middle of the Pacific Ocean and more easily protected being relatively isolated from active threats especially those arising from shipping and other human activities (other than fishing). Threats confronting the marine environment, biodiversity and resources of the Philippines archipelago are, on the other hand, in situ. Moreover, there is no comparison between the two national monuments insofar as biodiversity and ecosystem/ecoregion are concerned. The foregoing proposition for a declaration of the Philippines archipelago as PSSA would be a national first, with implications towards possible expansion of the protective mechanism regionwide as maritime communications is progressively organized and strengthened under the ASEAN Vision 2025 towards AEC 2015. In this regard, as already earlier suggested, the EU Integrated Maritime Policy (IMP) could be a useful notional approach.
PSSA/MEHRA : defining elements and its application in the Philippines archipelago
The IMO adopted the Revised Guidelines for the Identification and Designation of PSSAs through Assembly Resolution A.982(24) on 01 December 2005. The Guidelines defines PSSA as 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”, and may thus receive special protection through IMO sanction. The latest updated 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 marine area as fishing grounds, or for tourism and recreation
- scientific and educational criteria, such as biological research or historical value
- the particular attributes of the proposed area
- the vulnerability of such area to damage by international shipping activities
- the availability of APMs within the competence of the IMO to prevent, reduce, or eliminate risks from these shipping activities
To date, in a span of sixteen (16) years since inception, sixteen (16) PSSAs (a numerical coincidence) have been designated around the world, as follows:
- The Great Barrier Reef, Australia (1990)
- The Sabana-Camaguey Archipelago, Cuba (1997)
- Malpelo Island, Colombia (2002)
- The sea around the Florida Keys, United States of America (2002)
- The Walden Sea, Denmark, Germany, the Netherlands (2002)
- Paracas National Reserve, Peru (2002)
- Western European Waters (2004)
- Extension of the existing Great Barrier Reef PSSA to include the Torres Straits, Australia and Papua-New Guinea (2005)
- Canary Islands, Spain (2005)
- The Galapagos Archipelago, Ecuador (2005)
- The Baltic Sea area, Denmark, Estonia, Finland, Germany, Latvia, Lithuania, Poland and Sweden (2005)
- The Papahanaumokuakea Marine National Monument, United States of America (2007)
- The Strait of Bonifacio, France and Italy (2011)
- The Saba Bank, in the North-eastern Caribbean area of the Kingdom of the Netherlands (2012)
- Extension of the Great Barrier Reef and Torres Strait to encompass the south-west part of the Coral Sea (2015)
- The Jomard Entrance, Papua New Guinea (2016)
Archipelagic sea lanes passage suitable for the Philippines archipelago - the “scenic route” adapting PSSA/MEHRA protective mechanisms, a “two-in-one” solution
Being a coastal/archipelagic State, the Philippines’ core national interests and primordial maritime security concern lies naturally in ocean governance. And further, on account of the connectivity of the ocean especially in the setting of enclosed/semi-enclosed seas sharing characteristic regional features, ocean governance assumes a core regional interest. In the foregoing maritime setting, vessel transit regimes must be jointly managed with other regional countries to optimize protection mechanisms for the marine environment and consequent vessel traffic management, looking at AEC 2015. In the seas of ASEAN and the Central Indo-Pacific, archipelagic sea lanes passage issues would figure in about half the regional maritime area. And in this conjoined archipelagic seas of Philippines, Indonesia and Papua New-Guinea, which are also interconnected enclosed/semi-enclosed seas, the Philippines sector is the most strategic in regard to vessel traffic management and marine eco-system protection.
An early perception during the Third United Nations Conference on the Law of the Sea (UNCLOS III) is that it would necessarily be logical and convenient for an archipelagic State to designate archipelagic sea lanes. The perceived wisdom then, at least on the part of mid-ocean archipelago nations aspiring towards a special regime of the archipelagic State, is that designation of archipelagic sea lanes although conceding a derogation on national sovereignty, reserves to the archipelagic State the right to confine the passage of foreign vessels through archipelagic waters to within designated archipelagic sea lanes. This was seen to make for better traffic management and monitoring of transiting foreign vessels, a fair trade-off on derogation to national sovereignty. As indicated above, however, and as will be seen later, this is not and did not, turn out to be the case. Indeed, it is said that vessel transit issues through waters of a mid-ocean archipelago is what precluded other mid-ocean archipelago States such as Japan and the United Kingdom from declaring archipelagic State status.
Post-UNCLOS III and even after entry into force of the UNCLOS, the Philippines has not designated archipelagic sea lanes. What is shaping up in the Philippines insofar as concerns vessel traffic management and monitoring in its archipelagic waters, is a policy thrust which posits that peace, good order, and security in its archipelagic waters and overall in the archipelagic State itself, may be better served through a focus on the application of protective measures for the marine environment and resources, while guaranteeing and facilitating freedom of navigation. This is in lieu of designating archipelagic sea lanes. In the situation of the Philippines, this can be accomplished by instituting or adapting PSSA measures as national regulations that in practical effect, would result in a unilateral declaration of the entire archipelago as a PSSA. In other words, an IMO/PSSA template with associated protective measures can already be implemented in the Philippines as a national self-help effort and incorporated into existing domestic MPAs (NIPAS, etc.) as appropriate. This IMO/PSSA template adaptation would better serve the peculiar and particular circumstances of the Philippines as an archipelago and archipelagic State which unarguably meets the attributes or requirements as set out above under the IMO for a PSSA designation. Applying for formal IMO sanction would be held in abeyance until the adaptive national process is largely accomplished. This is to hasten organizing and instituting early protective measures and not intended to present the IMO with a fait accompli (which could not happen, anyway). Indeed, consultations can already be undertaken with the IMO and seek technical guidance for this national and unilateral project which has region-wide implications and applications. This thrust would at the same time build national awareness and appreciation of the sensitive marine environment of the entire archipelago.
Archipelagic sea lanes passage; an operational vessel transit management system for the Philippines archipelago
Under the above arrangement, the exercise of the right of archipelagic sea lanes passage by foreign vessels through archipelagic waters of the Philippines can be conducted through all routes normally used for international navigation, as required under the UNCLOS. As such, there would then be no necessity to designating archipelagic sea lanes which, in the geological configuration of the Philippines archipelago, would not anyhow result in any added margin of benefit or convenience in regard to vessel traffic management, safety and security; neither in favor of transiting foreign vessels nor especially for the Philippines archipelago. In this modern day and age, the continuous, expeditious and unobstructed passage of foreign vessels through archipelagic waters, whether in the exercise of archipelagic sea lanes passage or, for that matter innocent passage, can be managed, monitored and surveilled through modern hi-technology vessel traffic and tracking systems with special features (or apps, to use a contemporary term) designed for compliance of and conformity with environmental rules and regulations; effectively an electronic pilotage system. Electronic surveillance would also remove concerns about foreign vessels navigating in the “normal mode”, which is in regard to submarines, the specific object of concern whose normal mode of locomotion is underwater. They can be centrally tracked through modern technology MCS systems. Continuing and evolving technological advances have rendered the Earth, which is 80% ocean, virtually naked. In the archipelagic waters of the Philippines, submarines can no longer run nor hide; they are virtual sitting ducks. Modern technology has diminished the value of the “qualifier” normal mode and accordingly the necessity for designating archipelagic sea lanes.
The Philippines, with its narrow straits and constricted passages, and closely-grouped marine geological features, cannot accommodate uniform navigational corridors fifty (50) nautical miles wide as already suggested earlier. Moreover, in such very closely clustered islands, islets, shoals and reefs comprising the archipelago, it would also be redundant for the Philippines to propose suitable archipelagic sea lanes if such sea lanes would, after all, need to include all seven straits previously mentioned as entry and exit points normally used for international navigation. The question of suitability in regard to designation of archipelagic sea lanes would be unnecessarily contentious and at the same time irrelevant in the situation of the Philippines archipelago. Finally, foreign vessels transiting through archipelagic waters cannot be confined to archipelagic sea lanes unless navigating in the normal mode. Foreign vessels, therefore, if it so chooses, can enter and exit archipelagic waters or navigate anywhere in archipelagic waters in the exercise of innocent passage despite designation of archipelagic sea lanes (UNCLOS Article 52 para 1).
Instituting archipelago-wide APMs to guide vessel transit in exercise of the right of archipelagic sea lanes passage (and innocent passage) would be a more practical maritime security arrangement for the Philippines archipelago. For one, the entire archipelago is an ecosystem or ecoregion by itself (the first PSSA requirement) with rich and delicate marine biodiversity and accompanying vulnerabilities. Secondly, the Philippines archipelago is comprised of very closely-grouped islands and other marine geological features such that practical application is impossible in regard to technical parameters prescribed under the UNCLOS (continuous axis lines and permissible navigational deviations) for designation of archipelagic sea lanes. The Philippines must see clearly for itself that the UNCLOS regime on archipelagic sea lanes passage in its practical application may be nothing but a legal/juridical gobbledygook, a “red herring”. It might be best for itself to cast its lot in regard to maritime security towards protecting the marine environment, biodiversity and resources, which is the complementary element and very essence of archipelagic Statehood: the unity of land and sea.
Recapitulating on the foregoing situation, and once again taking into account the peculiarities in the marine geological/geomorphological configuration of the Philippines archipelago, it is difficult to see any practical purpose or maritime security measure, to designating archipelagic sea lanes. With the heightened awareness on the vulnerabilities of the country’s marine resources and environment to shipping and other human activities, the Philippines effort is best focused on establishing protective measures for the marine environment and resources while facilitating transit passage through its archipelagic waters, as oft suggested. While this approach might add another layer of navigational rules and regulations to which international merchant shipping activities and naval (military) operations could be subjected to, it would on the other hand substantially simplify the process of constructing a coherent and comprehensive protection mechanism in the maritime jurisdictions of the Philippines that project to the South China Sea and the Pacific Ocean; its vital and core national interest that is also a core regional interest for AEC 2015. Surveillance and vessel tracking can also be simplified applying a unified monitoring, control and surveillance (MCS) system that would include domestic ship routeing for inter-island shipping and ferry services. Objection to the foregoing proposition would be difficult to accept for after all, the designation of archipelagic sea lanes does not preclude instituting national rules and regulations within archipelagic waters for the protection of the marine environment and its living resources as the Philippines already had begun to do, as seen later, but as of yet unable to effectively implement.
Philippines’ national self-help efforts relating to the protection of the marine environment resources and seascape
The special circumstances and concerns of the Philippines archipelago have impelled the Government to adopt programs and policies to ensure the protection of marine resources, environment and biodiversity based on pure science and apart from any focus on threat situations arising from shipping activities, although necessarily relevant. Among the more important measures are :
- The National Integrated Protected Areas System (NIPAS) Act - Republic Act No. 7586, or the NIPAS Act, promulgated on 29 June 1992 during the Administration of President Fidel V. Ramos, provides the legal framework for the establishment of marine protected areas (MPAs). A marine protected area (MPA) is a broad term for sites wherein perimeter boundaries have been established in order to provide some level of management with the primary intent of protecting the site’s natural resources. In a sense, a marine protected area under the NIPAS Act is a particularly sensitive sea area in a national context in regard to a localized protection of the marine environment, resources and biodiversity. (It is not, as the joke goes, an area protected by the Marines.) The Philippines has so far established more than 900 MPAs, mostly in archipelagic and internal waters. Further enhanced and stitched together, this would eventually make for archipelago-wide tapestry of MPAs that would constitute building-blocks for a PSSA/MEHRA template seamlessly covering the entire archipelago.
- Executive Order 533 entitled “Adopting Integrated Coastal Management as a National Strategy to Ensure the Sustainable Development of the Country’s Coastal and Marine Environment and Resources and Establishing Supporting Mechanisms for Implementation” was issued on June 2006 by President Gloria Macapagal-Arroyo. The title is self-explanatory.
- Executive Order 578 entitled “Establishing the National Policy on Biological Diversity, prescribing its implementation throughout the country, particularly in the Sulu-Sulawesi Marine Ecosystem and the Verde Island Passage Marine Corridor” was issued on 08 November 2006, by (then) President Gloria Macapagal-Arroyo. This Executive proclamation can be said to be the initial practical step towards a declaration of the Philippines archipelago as a National Marine Park.
- Marine Environment High Risk Areas (MEHRA) - The Philippines is also undertaking risk assessment in preparation for designating Marine Environment High Risk Area (MEHRAs) in ports and ferry (Roll-on and Roll-off) terminals all over the archipelago. As defined, Marine Environment High Risk Areas are “comparatively limited areas of high sensitivity which are also at risk from shipping. There must be a realistic risk of pollution from merchant shipping”. As with PSSA, the identification and designation of MEHRAs are based on environmental sensitivity and risk from shipping activities. Unlike PSSA, however, MEHRAs are more focused on oil pollution and not other hazardous cargoes. Moreover, MEHRAs are applicable only in territorial (and archipelagic and internal) waters, and primarily aimed at raising awareness – calling attention of mariners to where extra protection from shipping is desirable, such as in ports and ferry terminals. MEHRAs do not need IMO approval, but should be communicated to the IMO so they can be indicated in navigational charts for awareness purposes. Domestic ship routeing with accompanying MEHRA protective measures is essential to the country’s nautical highway connecting the islands with ferries and inter-island shipping activity.
All the above can serve as the building-blocks and scientific framework for a comprehensive and coherent protective national mechanism melding PSSA/MEHRA and existing domestic measures among associated protective measures. This national effort and direction would necessarily be a continuing program to achieve archipelago-wide coherence, consistency and comprehensiveness. Equally important is for knowledge and experience to be shared region-wide that is the maritime area comprising the seas of ASEAN and the Central Indo-Pacific, especially with other archipelagic States. This national undertaking on the part of the Philippines would necessarily imply centrality of the Philippines and the ASEAN in a collective and cooperative endeavor under UNCLOS legal and scientific framework, particularly at Part IX thereof.
Possible policy challenges
The virtual unilateral declaration of the entire Philippines archipelago as PSSA/MEHRA and the consequent adoption of associated protective measures (APMs) to manage the transit of foreign vessels in lieu of the designation of archipelagic sea lanes is an approach without precedent. The idea of having an entire country declared a PSSA is in itself a novel concept. Indeed, while the IMO PSSA Guidelines is silent in regard to restrictions relating to the size of a marine area for a PSSA designation, it became a major issue way back in the early 1990’s with the application for the Baltic and Western European Waters. The concern on the size of Western European Waters designated as a PSSA has led the United Nations Division for Ocean Affairs and Law of the Sea (DOALOS) to offer the following comments, to wit:
“ . . . while it appears from this phrase that the area should in principle not include the entire Exclusive Economic Zones (EEZ), there is no maximum restriction on size. In fact if the entire EEZ were proven to be particularly sensitive and vulnerable to maritime traffic, it could be argued that it should be protected.”
In these modern times, to reiterate, area size for a PSSA designation is a non-issue.
It must be noted that the Baltic and Western European waters share the same “characteristic regional features” and concerns as the seas of ASEAN and the Central Indo-Pacific. The emphasis is clearly on protection and area size has been rendered irrelevant as above said. In over a decade and a half since the IMO PSSA program began, the proposals in regard to the size of an area for protective PSSA coverage have expanded progressively. The Northwestern Hawaiian Islands (Papahanaumokuakea) designated in 2007 by the United States of America as a marine national monument and a year later designated a PSSA by the IMO, is roughly 140,000 square miles of marine reserve that surpasses Australia’s Great Barrier Reef as the largest protected marine area in the world. It is about half of the total land area and maritime jurisdictions of the Philippines. In this regard attention is also called to an international legally binding instrument under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ) expected to be signed soon.
With the issue in regard to the size of the marine area target for PSSA protection effectively set aside, the Philippines archipelago, and for that matter, the extended regional marine area that is the seas of ASEAN and the Central Indo-Pacific in a mirror image of the characteristic regional features with that of the Baltic and Western European waters, can be seen to meet all the criteria for designation as PSSA, and deserving of such on account of the following special characteristics:
- Ecologically, the Philippines is the “center of the center of marine biodiversity” where the greater part of the Coral Triangle and Benham Rise among other sensitive areas, are located;
- Scientifically, the archipelago lies within the global center of marine biodiversity with several unique species, making it an area of high scientific interest;
- Socio-economically, with 62% of its population residing along the coastal areas of the Philippines, health and livelihood of communities depend mainly on coastal and marine resources;
As repeatedly suggested, the Philippines must work at securing a PSSA designation for the entire archipelago while facilitating transit passage of foreign vessels in order to preserve the peace, good order and security of the archipelagic State. This is not to modify or qualify the exercise of freedom of navigation, whether in innocent passage or archipelagic transit passage, but to look at the obverse side of shipping activities that is the protection of the marine environment which is the lifeblood and lifeline of the archipelagic State. Instead of a primacy of shipping activity by guaranteeing transit passage rights to foreign vessels while protecting and conserving the marine environment, the Philippines must seek to preserve the marine environment and its resources while guaranteeing transit passage, thus serving a core and vital national interest. Modern times, changin’ times, provides the opportunity. And to seize the moment for the seas of ASEAN and the Central Indo-Pacific sharing characteristic regional features, and ASEAN 2015 and beyond.
Natural role of the Philippines as sea shepherd in regional ocean governance
The unique setting of the Philippines herein narrated necessitate the adoption of both PSSA and MEHRA as complementary measures for the protection of the marine environment, resources and biodiversity from shipping and other human activities harmful to the ocean. To optimize protection, the elements for both protective modalities should be coherently examined and comprehensively applied nationally as appropriate, especially in their scientific aspects. Australia’s Great Barrier Reef is an example of a large PSSA that is complemented with MEHRAs both within and outside the same waters. PSSA and MEHRAs are essentially the same protective mechanism sharing the same rationale for marine environmental protection, and any distinction between the two protective modalities is only on account of the different legal framework and maritime jurisdictional areas to which they are applicable. This distinction, however, has no significant import in the situation of the Philippines archipelago and therefore simplifies the process. There must be a consolidation/correlation of both legal/policy and scientific aspects for seamless comprehensive implementation. Nevertheless, any step being taken along this process would best be done in collaboration or consultation with the IMO, seeking its guidance and assistance from the very start, or at least communicated to it.
Projecting regionally as a forward-looking national agenda, the Philippines must also take steps to pursue a joint initiative, initially with so-called claimant States in the South China Sea, for the designation of the Spratlys archipelago which bears the brunt of threat and vulnerability exposure to international shipping activity, as a Transborder Marine Peace Park (SCS-TMPP). As defined, Transborder Marine Peace Park is a protected area agreed upon and set aside by States Parties for a set of specific activities in pursuit of common goals in the interest of marine environmental protection and resources/biodiversity conservation, among other germane purposes. An TMPP-SCS is a management measure that a group of marine scientists from the Philippines and Vietnam consider appropriate to address the alarming concerns raised by the results of the Philippines-Vietnam Joint Oceanographic and Marine Scientific Research Expedition in the South China Sea (JOMSRE-SCS). Initial results of the bilateral Philippines-Vietnam JOMSRE-SCS suggest declining marine resources in the southern part of the South China Sea closer to the Philippines. In this regard, it can be said that groundwork for a TMPP-SCS has already been laid by the establishment of the Turtle Island Heritage Protected Area (TIHPA) jointly managed by Philippines and Malaysia, which is the first and only transboundary protected area for marine turtles in the world. The TIPHA can be considered as UNCLOS Part IX implementation directly as between the Parties concerned (UNCLOS 123). It must be emphasized, however, that these aforementioned existing and proposed protective mechanisms must be integrated/incorporated into a wider PSSA/MEHRA template for the reason that shipping activities pose a major environmental threat in the South China Sea, and the larger seas of ASEAN and the Central Indo-Pacific.
Conclusion : a mare clausum redivivus for the seas of ASEAN and the Central Indo-Pacific
As above narrated, the rebalancing (pivot) of concerns in regard to ocean governance in the large regional sea area that is the seas of ASEAN and the Central Indo-Pacific directly affect the health, livelihood and well-being of the people that inhabit the coastal communities. In the geographical/geological setting of an archipelagic continent that is the Central Indo-Pacific, the coastal population represents the larger exposure to maritime threats posed by human activities that needs regulation. Examples of such are numerous, as in the case of Illegal, Unregulated, Unreported (IUU) fishing, unbridled competition for marine resources, transborder marine pollution, destruction of the marine environment, slavery at sea, etc. and a host of so-called non-traditional maritime security concerns. A serious non-traditional maritime security issue comes from shipping activities. The seas of ASEAN and the Central Indo-Pacific that is said to be the center of the center of marine biodiversity, the more than 50% of the world shipping activity passing through the maritime region poses grave threat regionwide, particularly to the Philippines, the strategic center for regional ocean governance.
In another vein relating to non-traditional maritime security concerns, it is better to anticipate controversies and avert potential conflict situations rather than waiting for those to arise in the actual maritime arena, where naval probing exercises are already being conducted by certain maritime States to test gaps or ambiguities in the regime of archipelagic transit passage. Time is now of the essence when maritime and shipping activity in the Southeast Asia maritime region, essentially the seas of ASEAN and the Central Indo-Pacific, in more recent times have seen and foresees dramatic leaps arising from increased shipping of goods and energy resources in a globalized world. In this maritime age facing a sea change, in particular impacting on the highly strategic regional sea area that is the seas of ASEAN and the Central Indo-Pacific, non-traditional maritime security concerns are new and accompanying ocean governance challenges, and the more serious in regard to overall maritime security. Not least of all, however, are those in regard to shipping activities. The EU is the ASEAN model in regard to constructing economic/political regionalism, and the EU in the process of integration and consolidation has established regional maritime security and connectivity which the ASEAN can emulate on account of a mirror-image regional maritime situation. The regional States of the ASEAN and the Central Indo-Pacific must anticipate the construction of regional ocean governance and maritime connectivity to ensure the peace, good order and security of regional seas, with the EU Integrated Maritime Policy (IMP) as model and template, as already suggested.
In regard to vessel transit passage through its archipelagic waters, the basic premises and proposition for the Philippines are as follows:
- It subscribes to the UNCLOS as the legal framework for ocean governance
- It reaffirms adherence to the principle of freedom and safety of navigation, and the observance of obligations to facilitate transit passage of foreign vessels; and
- It endeavors to seek a suitable balance of the aforementioned premises consistent with its extraordinary circumstances as an archipelago and archipelagic State, through ocean governance
Finally, addressing the archipelagic sea lanes passage regime, although involving a large ocean space that are the conjoined archipelagic seas of Philippines, Indonesia and Papua-New Guinea, would be the easier passage regime to address for a start at clarifying transit passage for the seas of ASEAN and the Central Indo-Pacific. It would be the first stage in a journey of a thousand miles. And any next steps towards achieving comprehensiveness in all aspects of a unified transit passage regime would be more difficult and complicated taking into account the 12 July 2016 ruling of The Hague Permanent Court of Arbitration (The Hague PCA) that purports to define the marine geological features and attaching maritime jurisdictions in the South China Sea. Clarifying archipelagic sea lanes passage will be a difficult process, complicated and potentially highly controversial. And to borrow some very famous words, it would not be the end, it will not even be the beginning of the end, it would just be the end of the beginning.
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[An easy-to-read but very compelling material to better understand the subject and objective of this paper in regard to the protection of the marine environment, herewith attached is a copy of an article entitled “Obama creates the largest protected place on the planet, in Hawaii” written by Juliet Eilperin on August 26, 2016 for the Washington Post.]
 The description of the Philippines as a quintessential coastal State is from the Partnerships in Environmental Management of the Seas of East Asia (PEMSEA).
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 Department of Environment and Natural Resources, Bureau of Fisheries and Aquatic Resources of the Department of Agriculture, and Department of Interior and Local Government, 2001. Philippine Coastal Management Guidebook No. 1: Coastal Management Orientation and Overview. Coastal Resource Management Project of the Department of Environment and Natural Resources, Cebu City, Philippines, 58 p.
 DENR, et.al (2001).
 Jorge R. Coquia, “Series One Monograph No. 1 – Selected Essays on Law of the Sea”, Secretariat to the Cabinet Committee on the Law of the Sea Treaty, October 1982, 50 p.
 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.
 The Nature Conservancy, Southeast Asia Center for Marine Protected Areas. “Delineating the Coral Triangle, its ecoregions and functional seascapes.” Report on an expert workshop, held at the Southeast Asia Center for Marine Protected Areas; Bali, Indonesia (April 30 – May 2, 2003).
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 http://oneocean.org/about_crmp/biodiversity.html. Accessed on 15 October 2003.
 The M/V Solar I, chartered by Petron, the Philippines’ largest oil refiner, was carrying 2.4 million litres of oil to the southern island of Mindanao, sank on 11 August 2006 at Guimaras Island, several hundred kilometers south of the capital Manila. The Philippines Coast Guard considered this incident as the worst oil spill in the country’s history. The spill affected 20 communities in 4 municipalities in Guimaras, and a threat to 27 communities in Iloilo province and 17 others in Negros Occidental.
 Fonbuena, Carmela, “Cost of Guimaras : P 9.2 Billion”, Rappler. 24 September 2006. http://www.rappler.com/newsbreak/65893-cost-guimaras-oil-spill (Accessed on 16 April 2017).
 Olivario, Arturo P. “Oil Spill Response”. (Presentation). Proceedings of the National Workshop on the PSSAs and Other IMO Tools for Area Specific Management, Traders Hotel, Manila, 14-16 November 2007. (Unpublished).
 Carpenter, K.E. and V.G. Springer (2005).
 Bender, Jeremy. “These 8 narrow chokepoints are critical to the world’s oil trade”, Business Insider. 01 April 2015. http://www.businessinsider.com/worlds-eight-oil-chokepoints-2015-4 (Accessed on 08 April 2017).
 According to the UNCLOS, passage is innocent so long as it is not prejudicial to peace, good order or security of the coastal State. See UNCLOS Articles 17-26, 45, 52.
 As interpreted and as provided for in the IMO GPASL the designation of archipelagic sea lanes should include all normal passage routes and navigational channels as required by the [UNCLOS]. In effect, this prevents an archipelagic State to choose designated archipelagic sea lanes considering that it is obliged to designate all standing international navigation routes as archipelagic sea lanes. See IMO Doc MSC 69022/Add. 1.
 The US and Australia, two of the user States of Indonesian archipelagic waters, have different interpretation as to where should the axis line be approximated. US position is to position the axis line in such a way that the maximum sea area available for the user States’ vessels would be attained. Australia contended that the axis line should approximate the normal routes for international navigation and should comply with IMO safety requirements for maritime navigation.
 Particularly Sensitive Sea Areas. Accessed on 03 April 2017 from http://www.imo.org/en/OurWork /Environment/PSSAs/Pages /Default.aspx
 Department of Environment and Natural Resources, Bureau of Fisheries and Aquatic Resources of the Department of Agriculture, and Department of Interior and Local Government. 2001. Philippine Coastal Management Guidebook No. 5: Managing Coastal Habitats and Marine Protected Areas, Coastal Resource Management Project of the Department of Environment and Natural Resources, Cebu City, Philippines, 106 p.
 Rebecca Weeks, Gary R. Russ, Angel C. Alcala and Alan T. White. Effectiveness of Marine Protected Areas in the Philippines for Biodiversity Conservation, Conservation Biology Volume **, No. *, 2009
 MEHRAs are a UK initiative first identified by Lord Donaldson in his report which was commissioned following the Braer oil spill in 1993. Lord Donaldson identified MEHRA as one mechanism to improve safety of shipping and increase protection of the environment.
 WWF/TWT (World Wildlife Fund/The Wildlife Trusts). “Particularly Sensitive Sea Areas(PSSAs) and Marine Environmentally High Risk Areas (MEHRAs)”. September 2003.
 With reference to the size, the PSSA Guidelines provides that, in assessing each PSSA proposal, the IMO should consider “whether the size of the area is commensurate with that necessary to address the identified need”. See PSSA Guidelines para 8.2.3.
 IMO, LEG 87/16/1.
 “Hawaiian Marine Reserve to be World’s Largest”, Washington Post. 15 June 2006, A01.
 Alcala, Angel C. “Presentation of the highlights of JOMSRE-SCS IV.” RP-Vietnam 4th Meeting of the Joint Permanent Working Group on Maritime and Ocean Concerns (JPWG-MOC). Hanoi, Vietnam. 29 September 2007.