pahabol lang........
Opinion: New danger in our seasby: Prof. H. Harry L. Roque, Jr.
The collision last weekend between a Chinese submarine and a sonar array being towed by an American destroyer highlights a threat to Philippine security made possible by the recently enacted Baselines law.
Prior to the enactment of the said law, the waters in and around the islands of our archipelago were “internal waters." Foreign vessels, including submarines and warships, could not “sail through" our internal waters without our express consent.
Under customary international law, these vessels may only “sail through" that maritime zone known as the territorial seas or the waters within 12 nautical miles from our baselines.
The United Nations Convention on the Law of the Seas, as implemented by the 2009 Baselines law, does away with this prohibition as it now classifies the waters in and around our islands as “archipelagic waters." Now, submarines and warships not only have the right to innocent passage, but aircraft may also exercise the right to overflight, with or without our consent.
This is precisely why concerned citizens led by Prof. Merlin Magallona of the University of the Philippines College of Law impugned the constitutionality of the Baselines law.
Yet this is perhaps why Philippine and American authorities, despite wire reports quoting sources that the collision occurred “off the coast of Subic," now insist that the accident could have happened in international waters. The sonar array being towed by the US destroyer John McCain (named after the former presidential candidate's father) was a long underwater cable with hydrophones for listening to objects emitting sound, such as other countries' submarines.
If the collision did occur a stone’s throw away from the former American naval facility, it may yet convince the magistrates of the Philippine Supreme Court of the folly of the legislation implementing the provisions of the UNCLOS relative to the regime applicable to archipelagic states.
Certainly, the collision is one of the many dreaded possibilities that opponents of the law have stated in their petition. But beyond these constitutional issues, this incident highlights even more difficult issues that should now be the subject of intense public debate.
To begin with, while the UNCLOS grants foreign submarines and warships the right to innocent passage through territorial seas and archipelagic waters, it must be a continuous and uninterrupted journey intended only to pass through these waters.
And yet, the question is: what were the Chinese submarine and the American destroyer John McCain doing in our waters in the first place? The waters off Subic are not used as established sea lanes precisely because the South China Sea already serves that purpose.
Moreover, what was an American destroyer with submarine-tracking sonar equipment doing in such close proximity to a Chinese submarine “off the coast of Subic?"
Philippine and American authorities would want us to believe that the collision was purely accidental and that their proximity to each other was coincidental.
The more likely scenario, however, was that the John McCain, specially fitted to detect submarines, could have been in pursuit of the Chinese submarine.
Philippine Navy officials have at least conceded that they did not receive any request from either the Chinese or the Americans to have their vessels sail through our waters. This was enough for the Philippine Navy to conclude that in the absence of such a request, the collision could only have happened in international waters. But that accords the superpowers too much benefit of the doubt.
The more plausible scenario is that they were in fact in a dangerous naval power game of hide-and-seek and could simply not care less that they were doing it in Philippine waters for two reasons: one, the sorry state of our navy; and two, the continuing subservience of the
Arroyo government to both Beijing and Washington, D.C. would make any protest from our end wholly immaterial and irrelevant.
Further, the 1987 Constitution provides for a state policy that declares the Philippines to be a nuclear-free zone. How do we now implement this policy when Congress has just granted all vessels, including nuclear-powered ones, access to almost the entirety of our waters? Worse, in case of radioactive contamination as a result of a collision, who will pay for the cost of clean-up? An even more basic question is, do we already have the technology to deal with such radioactive contamination in the first place?
We may never know what really happened between the Chinese and American navies in or near our waters. Officials of both countries, as well as the Philippines, will invoke their national security in refusing to divulge all the facts pertaining to the collision.
The refusal of all the countries concerned to even acknowledge where the collision occurred violates the right of the Filipino people to information on matters involving our public interest.
This is perhaps why the incident is proof that our waters, particularly with the Baselines law, have indeed become dangerous seas.
The author is a professor at the University of the Philippines' College of Law and is chairman of the Center for International Law. 
