Ship grounding to affect US' Asia pivot: analyst

by Jojo Malig,

Posted at Feb 15 2013 09:23 PM | Updated as of Feb 16 2013 07:33 AM

MANILA - American military forces' pivot in the Asia-Pacific will be affected by the grounding of a US Navy ship at Tubbataha reef in the Philippines, an analyst warned Friday.

Sam Bateman, a senior fellow with the Maritime Security Programme at the S. Rajaratnam School of International Studies (RSIS), said in a paper published Friday by the Singapore-based think-tank that the grounding of the USS Guardian could result in countries in the region taking a harder line on the passage of US warships in their maritime territory.

"Longer-term problems for the US might lie in hardened attitudes towards the rights of warships in regional waters," he said.

US President Barack Obama announced a "pivot" of US forces, resources, and policy in Asia last year, resulting in the resurgence of American warships, planes, and personnel in the region.

Bateman, a former Australian naval commodore who had 4 ship commands during his naval career, explained that warships have sovereign immunity, which means they are not bound by a country's laws.

"However, most navies will usually follow any environmental restrictions placed by a coastal state. A restriction on navigation through a designated marine park would be the type of restriction that would normally be observed by a warship," he said.

On January 17, the US Navy minesweeper ran aground at the marine sanctuary in the Sulu Sea, destroying at least 4,000 square meters of the national marine park that has been declared as a World Heritage Site by the UNESCO.

Under the 1982 UN Convention on the Law of the Sea (UNCLOS), seas within the Philippine archipelago are archipelagic waters that all ships have the right of innocent passage. "However, this right is a restrictive one which can be suspended in certain circumstances," Bateman said.

"It also includes some specific limitations on the activities of warships whilst exercising the right. Some regional countries, including China, the Philippines and Indonesia, have legislation requiring countries to give prior notification of the innocent passage of warships through their archipelagic waters or territorial sea," he added.

Philippine-US VFA

The Visiting Forces Agreement (VFA) between Manila and Washington allows the entry of US vessels and aircraft in the Philippines.

However, the VFA also requires the US to inform the Philippines first about the planned entry of US ships and aircraft.

"The movement of vessels shall be in accordance with international custom and practice governing such vessels," Article 8 of the VFA said.

Bateman said UNCLOS also allows the right of archipelagic sea lanes (ASL) passage. "It cannot be suspended and allows warships to conduct most of their normal passage activities while exercising the right. However, the passage must be conducted along ASLs designated by the archipelagic state, or if no such lanes have been designated, along routes normally used for international navigation."

"The USN would no doubt argue that the Guardian was exercising the right of ASL passage and not affected by any requirement for prior notification. However, the incident is likely to reinforce the position of the Philippines on prior notification of warship transit," he added.

He said the US will dispute Manila stands on prior notification under the VFA, it likely damage the bilateral relationship between the 2 allied nations.   

Bateman said the US, which has not ratified UNCLOS, is also facing several disagreements with other countries over the law of the sea.

"Its position on navigational freedoms in regional waters is also not helped by accidents, such as the grounding of the USS Guardian, that show that even warships can be involved in 'at fault' navigational accidents," he added.

US financial, strategic loss

Bateman said that aside from losing the $277-million minesweeper and the expected financial penalty over the destruction of a section of the reef, the US faces longer-term political and strategic costs.

"The incident has already sparked anti-US protests across the Philippines with protesters questioning the reinvigorated US military presence in their country.  However, more serious consequences might lie in regional countries taking a harder line on the operations of warships in archipelagic waters and exclusive economic zone (EEZs)," he said.

"Accidents such as the grounding of the Guardian do not help the US position," Bateman said.