Submitted to the Senate Committee on National Defense and Security, Peace, Unification and Reconciliation, Committees on Foreign Relations, Public Works and Finance and Special Committee on Philippine Maritime and Admiralty Zones that are conducting public hearings on the West Philippine Sea by the International Law and Relations Society of the Philippines (ISIP), an intellectual society composed of retired Chief Justice of the Supreme Court Reynato S. Puno, retired CG Admiral Joel S. Garcia, Dr. Melissa Loja, Prof. Romel Bagares and Atty. Al Soriano.
The significance of the distinction between a military force and a law enforcement force.
The distinction between military forces and law enforcement forces is not mere hairsplitting. It has profound legal significance. The significance vary according to the time (peacetime or wartime); place and space (territorial, maritime and air space); and type of activities.
2.1 Peacetime or wartime
During peacetime, in the international legal system, both military forces and law enforcement forces, as well as their public or non-commercial vessels and aircraft enjoy sovereign immunity. Wherever they may be situated, these forces and their vessels and aircraft are an extension of the territory of their state and, as such, immune from arrest, search, inspection/boarding or other exercise of jurisdiction by a foreign state. Thus, any threat or use of force upon these forces, vessels and aircraft would amount to an act of aggression against the territory of the flag state. Self-defense against such acts of aggression would be a just cause for war.
During an international or non-international armed conflict in which a flag state is either a belligerent state or a third state whose territory has been placed at the disposal of a belligerent state, its military forces and their vessels and aircraft are a legitimate military objective. In contrast, being civilian in nature and function, law enforcement forces are not a legitimate military objective, unless they have been incorporated into or tasked to perform the functions of a military force.
2.2 Disputed and undisputed territorial, maritime and air space
Whether it is peacetime or wartime, within the undisputed internal waters, archipelagic waters, territorial waters and the superjacent airspace of a coastal state, its law enforcement forces, vessels and aircraft may exercise all rights of territorial sovereignty, including prescriptive and enforcement jurisdiction over political, criminal, civil, tax and commercial activities, subject to the sovereign immunities of foreign states. Its military forces, vessels and aircraft have the right to defend the territorial sovereignty of the state from internal or external threats.
If said territorial, maritime and air spaces are disputed, the occupying claimant state may exercise all rights of territorial sovereignty pending resolution of the dispute by peaceful means. An opposing but non-occupying claimant state may not use force to alter the territorial situation of such disputed areas; otherwise, it would be committing acts of aggression. Hence, the military forces, vessels or aircraft of said opposing non-occupying claimant state may not claim innocent or transit passage through or into said disputed land territory, territorial sea and territorial air space, for such presence could be considered an act or threat of aggression.Said opposing non-occupying claimant state may resort only to peaceful or diplomatic means to resolve the dispute.
The military and law enforcement vessels and aircraft of a non-belligerent foreign state may exercise the following freedom of navigation and overflight in the maritime and air spaces of another state, such as an archipelagic state like the Philippines.
To emphasize, a foreign state’s submarine, nuclear ship, military vessel (or warship) or law enforcement vessel (also called government ship operated for non-commercial purposes) may exercise transit and innocent passage through the territorial sea or straits used for international navigation of a coastal state. Such passage is subject to regulations under UNCLOS and the laws of the coastal state, provided that, with respect to domestic regulations, the same must not impair freedom of navigation. The coastal state may require a non-compliant military vessel to leave its territorial sea, whereas it may only hold the flag state of a law enforcement vessel liable for any damage that the latter may have caused.
Transit passage by a foreign military or law enforcement vessel through the internal waters of a coastal state is available only when said waters was previously part of straits used for international navigation but were recently “enclose[ed] as internal waters” following adoption by the coastal state of straight baselines. Otherwise, their transit passage through internal waters is subject to prior and specific consent of the coastal state. In Arigo v. Swift, the Supreme Court noted that the presence of a US military vessel in Philippine internal waters was unauthorized given that the latter had deviated from its permitted route.
Freedom of overflight by a foreign military or law enforcement aircraft is not available in the territorial sea or internal waters of a coastal state, except with the prior consent of the latter. Such freedom is available through archipelagic air routes or through straits previously used for international overflight but was recently “enclose[ed] as internal waters.”
To reiterate, given the precondition for the exercise of transit, innocent and archipelagic passage and overflight, a state may deny such passage by the military and law enforcement vessels and aircraft of another state which has an adverse claim to the very territorial sea, archipelagic waters or internal waters in which such passage is sought.
To be continued