All views expressed herein are the contributor’s and do not represent the opinions of any entity whatsoever with which he has been, is now, or will be affiliated.

Through Administrative Order (AO) No. 29 series of 2012 the Philippine State named the sea areas west of the Philippine archipelago as the ‘West Philippine Sea’. It is important to clarify what these areas are.

If one reads the whereas clauses of the AO the idea is that the name ‘West Philippine Sea’ refers to the Philippines’ Exclusive Economic Zone (‘EEZ’) on the west of the Philippine archipelago –

WHEREAS, Presidential Decree No. 1599 (1978) established the Exclusive Economic Zone (EEZ) of the Philippines extending to a distance of two hundred nautical miles from the baselines of the Philippine archipelago;

[…]

WHEREAS, the Philippines exercises sovereign rights under the principles of international law, including the 1982 United Nations Convention on the Law of the Sea (UNCLOS), to explore and exploit, conserve and manage the natural resources, whether living or non-living, both renewable and non-renewable, of the sea-bed, including the subsoil and the adjacent waters, and to conduct other activities for the economic exploitation and exploration of its maritime domain, such as the production of energy from the water, currents and winds;

WHEREAS, the Philippines exercises sovereign jurisdiction in its EEZ with regard to the establishment and use of artificial islands, installations and structures; marine scientific research; protection and preservation of the marine environment; and other rights and duties provided for in UNCLOS; and (Emphasis and underscoring supplied)

Thus understood, the ‘West Philippine Sea’ is to be used only to refer to the area 200 nautical miles (nm) from the archipelagic baselines of the Philippines. Read in this wise, features such as Thitu (Pag-Asa) Island, which ‘lies 227.4 nautical miles from the archipelagic baseline of the Philippine island of Palawan’, cannot be properly deemed part of the ‘West Philippine Sea’.

However, if one continues to read the subsequent provision of the AO it would appear that ‘West Philippine Sea’ is not limited to the EEZ –

Section 1. The maritime areas on the western side of the Philippine archipelago are hereby named as the West Philippine Sea. These areas include the Luzon Sea as well as the waters around, within and adjacent to the Kalayaan Island Group and Bajo De Masinloc, also known as Scarborough Shoal. (Emphasis and underscoring supplied)

As we know from the South China Sea Arbitration Case between the Republic of the Philippines and the People’s Republic of China, the features in the Spratly Island Group or Kalayaan Island Group (‘KIG’), as well as Scarborough Shoal or Bajo de Masinloc, are at best rocks, which could generate no more than a 12nm territorial sea. Therefore, per Section 1 of the AO ‘West Philippine Sea’ also refers to the territorial sea areas of the KIG which includes Thitu (Pag-Asa) Island.

To the mind of the contributor, the AO authorising the use of the name ‘West Philippine Sea’ is problematic; it is not advisable that the name be used to refer to different maritime zones, i.e. the EEZ and the territorial sea. The reason is simple: the legal statuses of these two zones are different.

Thus, the contributor inquired from government office X as to the meaning of the ‘West Philippine Sea’. The clarification given was that it only refers to the Philippines’ EEZ on the western part of the Philippine archipelago. However, upon inquiry from government office Y, the contributor was told that ‘West Philippine Sea’ refers not only to the Philippines’ EEZ but also to the maritime areas, i.e. territorial sea, of the features of the KIG.

It is unfortunate that differing views have been put forth by the government. To be sure and fair, both can actually be correct. Government office X is correct in the sense that it is against using a single reference for different maritime zones. Government office Y is likewise correct in that it merely adheres to the text of the AO.

The problem that should be realised is that the use of the name ‘West Philippine Sea’ effectively merges and conflates the different maritime zones on the western side of the Philippines. Thus, an incident at Reed (Recto) Bank which is within the Philippines’ EEZ and an incident in the territorial sea of Thitu (Pag-asa) Island would be reported as both West Philippine Sea incidents, as though the legal status of these maritime areas were the same. More importantly, such practice may result in difficulties in being able to appreciate the fundamental differences between sovereignty on the one hand and sovereign rights and jurisdiction on the other hand in reference to the Philippines’ maritime entitlements in the waters off the western part of the archipelago.

The Philippine State has (a claim of) sovereignty over the features of the KIG and over Bajo de Masinloc. Sovereignty is different from sovereign rights, which are the Philippines’ maritime entitlement in its EEZ. Properly understanding the name ‘West Philippine Sea’ is not merely being technical or legalistic but it is being mindful of the different maritime zones of the law of the sea and the nuances of their legal status. For the sake of good order, it is humbly and respectfully submitted that the ‘West Philippine Sea’ should be reviewed.

About the author:

• Atty. Julius Yano received his academic and professional training in international maritime law in Europe. He is a member of the Institute for Maritime and Ocean Affairs.