The dangers of neglected marine policies

The grounding of the USS Guardian in the Tubbataha Reef National Marine Park is a veritable showcase of deeply rooted flaws in the Philippines’ marine territorial policies.

Obviously, the government’s initial indecision to take action stems from the United States’ status as a treaty ally. Dependence on the US strategic umbrella and the previous clamor for its more active presence in the West Philippine Sea have clearly muted official response to the incident. But the military alliance need not weigh heavily: Reports to date do not show that the Guardian’s presence is connected to any military exercise under the Visiting Forces Agreement. The ship was merely sailing from one port of call to the next. Thus, the incident involves passage through Philippine waters, and is subject primarily to Philippine laws and regulations as in any other foreign vessel.

Even if the ship is covered by the VFA, the latter provides that entry and passage should have prior approval of the Philippines, and requires it to respect our laws. In either case, the responsibility of the ship (and its owner) is clear and undeniable. The international law governing ships’ passage protects the ship only as long as it engages in safe and expeditious movement through the seas, and does not extend to maritime accidents or to violation of national marine park laws and regulations. The sovereign immunity of naval vessels protects the vessel, crew, and flag-state only from being haled to court; it does not absolve them of accountability for the incident.

Whether or not the Guardian was involved in any military exercise, it is perfectly reasonable to ask why it chose a course that brought it directly into Tubbataha. After all, Tubbataha is a well-known triangular marine feature on all navigational charts with an area of about 600 square kilometers. Most ships give wide berth to and pass east of Tubbataha; park rangers say that usually they are like dots on the horizon. The Guardian’s reported origin and destination, course, and grounded position on the north side of the South Atoll imply that it decided to pass extremely close to Tubbataha. It disregarded not only the presence of the park but also the obvious hazard that any large reef complex poses to all ships. Faulty digital charts notwithstanding, it is the ship captain’s duty to ensure that known hazards are avoided, especially when traversing unfamiliar waters.

With the Guardian aground, its removal is governed by the Philippine law on salvage operations, which is under the jurisdiction of the Philippine Coast Guard. While the United States may take responsibility for the actual salvage to give due respect to the ship’s status as a US Navy vessel, such an operation should officially be under PCG supervision. And since it takes place within a national marine park, the Tubbataha Management Office, which has intimate knowledge of the area, should be present and participate actively in the ship’s safe removal.

This participation should continue well into damage assessment and all postoperation proceedings. At the inquiry that the US Navy is bound to conduct, the Philippines should also take part in determining the causes of the incident and due responsibility. It will then be a test of diplomatic skills for the government to secure the proper compensation for the damage wrought.

But the government’s tasks do not end there. This incident points to deeper flaws, specifically in policies regarding navigation by foreign vessels through Philippine waters. It underscores the need for marine housekeeping to protect and conserve our fragile marine treasures. Most urgent is to work for the International Maritime Organization to declare a Particularly Sensitive Sea Area around Tubbataha. This will establish an internationally recognized set of rules for all civilian and military vessels, like areas to avoid and sailing restrictions, and also help in establishing navigational aids, all of which can enhance the park’s safety and integrity.

Next is the enactment of the Maritime Code, to overhaul many of our antiquated maritime laws, including the current Salvage Law that dates back to 1916. The Maritime Code was reported out of the House committee on transportation late last year and has become a casualty of the coming elections; it should be listed as a priority bill at the opening of the next Congress.

Policymakers and lawmakers should also learn from this incident to avoid ill-advised and hasty actions. Early last year, the House passed HB 4153 that would have established an archipelagic sea lane right through the southern portion of Tubbataha despite objections. Had the bill passed into law, it would have concentrated military traffic where the Guardian has run aground and increased the risks of destruction of Tubbataha. The Department of Foreign Affairs lobbied hard for the bill, not realizing it exposed environmentally critical areas and major fishing grounds to foreign military traffic without first establishing basic navigational aids to prevent accidents, or monitoring systems to prevent abuse of the sea lanes.

While compliance with international obligations under the UN Convention on the Law of the Sea is important, it does not prevent us from first taking action to protect our resources.

Carefully designed policies and proper steps to enhance marine safety and environmental protection are necessary considering that our country is heavily dependent on our seas. This is not the first time a ship has hit Tubbataha, and it could just as easily be Chinese or Japanese. It is unacceptable that for every time a foreign navy has an accident in our busy seas, we will just stand by and let it clean up the mess.

Jay L. Batongbacal is assistant professor at the University of the Philippines College of Law and director of the UP Law Center Institute for Maritime Affairs and Law of the Sea.