Not so innocent passage

It’s almost a formula on how to lose your ally’s confidence. Send in a minesweeper apparently on the stealth, and be found out when it runs aground due to faulty navigation, and in an internationally protected haven for fragile marine life at that.

But if the incident is a reminder of the lingering American military presence in Philippine waters, then let it be a reminder not just to the Filipinos but to the Chinese as well. Instead of being forced to choose between crying sovereignty and crying uncle, we must “seize the day, seize the hour,” in the words of Chairman Mao himself, and marshal our international mandate and our sovereign power to protect our prized reefs. Tubbataha is indubitably within our waters, separated from their “dotted-U” line by the whole stretch of Palawan island—but the message of a deterrent US presence in our region still comes across loud and clear. But for us to make the most of a bad situation, first we must lay responsibility where it should lie.

The Tubbataha Reef is protected by Unesco as a World Heritage Site and by Philippine law as well as a coral sanctuary. Republic Act No. 10067, or the Tubbataha Reefs Natural Park Act of 2009, has declared it “off-limits to navigation” and has banned the “unauthorized entry” of vessels except in emergency situations or with prior permission from our own Tubbataha authorities. Violators are subject to imprisonment and a fine, apart from being held to pay for damages to the reef.

The United States can very well claim that its vessel was merely exercising the right of innocent passage. International law, whether treaty or custom, recognizes that “[p]assage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State.” After all, the ship was merely passing through after routine refueling and resupply at Subic Bay, presumably authorized under the Visiting Forces Agreement. Yet even the VFA recognizes Philippine jurisdiction to punish “offenses committed within the Philippines and punishable under the law of the Philippines.” When the VFA declares that “it is the duty of US personnel to respect the laws of the Republic of the Philippines,” certainly that includes the Tubbataha Reefs Natural Park Act. The real affront to our sovereignty was when the USS Guardian’s commander refused inspection by the Tubbataha park rangers and even ordered his crew into battle position when our rangers tried to approach their ship.

Until today, it remains a mystery: “Why were they even near Tubbataha? The Sulu Sea is so vast, and it takes 10 hours from Puerto Princesa to reach it. Why couldn’t they see it when they had all the state-of-the-art maps and navigation systems?” asked Jose Ma. Lorenzo, World Wildlife Fund-Philippines chief executive officer.

The USS Guardian incident presents the Philippines with a unique opportunity to enlist global support from the environmental community abroad, including powerful voices from within the United States, while asserting its sovereignty. In other words, this is one episode where US military authorities have to contend with outrage not just from foreigners but from their own. Our diplomats should therefore work hand in hand with Filipino NGOs to mobilize the environmentalists, internationally and within the United States, to pressure the American government to cooperate fully with Philippine investigators.

We can investigate the incident at different levels. Our VFA commission should verify the passage of the vessel through Philippine waters, and ascertain whether the Tubbataha Reefs Natural Park Act was violated when the ship’s commander resisted inspection and when his ship eventually ran aground. That law also empowers our own Tubbataha authorities to protect the sanctuary. Finally, our senators, many of whom have openly protested the incursion, can likewise launch their own legislative inquiry, especially since the House of Representatives has passed a bill that would strangely allow international passage through part of the protected reefs, and it is left to the Senate to stop it.

In the past, the Philippine government had had to struggle to assert its sovereignty, especially in the famous “Nicole” rape prosecution and, not too well known, the 2009 collision near Subic of a Chinese submarine and an underwater sonar device towed by the destroyer USS John S. McCain. This time, we wouldn’t be alone in our outrage. Investigate we must. Full steam ahead.