Foreign Relations of the United States, 1964–1968, Volume XXVI, Indonesia; Malaysia-Singapore; Philippines

372. Action Memorandum From the Deputy Assistant Secretary of State for East Asian and Pacific Affairs (Godley) to the Assistant Secretary of State for East Asian and Pacific Affairs (Bundy)¹

Washington, November 15, 1968.

SUBJECT

• Philippine Archipelago Theory and the Right of Innocent Passage

1. The Philippine Government recently amended its legislation concerning territorial seas and internal waters, thereby reasserting its claim to an area of the high seas which at one point extends over 300 miles from the nearest Philippine land area of any consequence. This is a repetition of a previous claim made by the Philippine Government which we and other nations have never recognized. In 1961 we officially notified the Philippine Government of our non-recognition of this claim, and we consider it advisable to repeat our position at this time.

2. If this had been the only issue raised by the Philippine Government, it could have been handled in a low key and with little or no controversy with the Philippine Government. However, the Philippine Government has also for the first time attempted to deny the right of innocent passage to warships by requiring prior permission for passage of warships through Philippine claimed waters. This Philippine position was expressed in an Aide-Mémoire delivered to the British Government (Tab A),² an Aide-Mémoire delivered to the Australian Government (Tab B),³ and a news release by the press office of Malacanang (Tab C).⁴ By the terms of these documents, the Philippine position would apply to all armed foreign public vessels. We do not feel we can leave this position unchallenged. It is contrary to the United States Government’s view that a requirement of previous authorization for passage of warships is inconsistent with the right of innocent passage for warships guaranteed by the Convention on the Territorial Sea and customary international law. Philippine enforcement of their announced policy would create a precedent that invites application of this principle to other areas such as the Straits of Gibraltar, thereby endangering passage that is crucial to the strategic interests of the United States, its allies, and the free world. DOD (particularly the Navy), and the Office of the Legal Adviser in the Department feel very strongly, and we in EA concur, that we must not allow this precedent to take hold.

3. Both the British and the Australians are faced with the necessity of replying to notes and Aides-Mémoire but their Embassies here expressed a desire to consult with us in advance. The British have prepared draft replies, a note protesting the legislation (Tab D) and an Aide-Mémoire in response to the Philippine Aide-Mémoire on innocent passage (Tab E).⁵

4. Given the current anger of the Filipinos against the British growing out of the Sabah dispute and British actions in support of Malaysia, it is our conviction that a delivery of the British note and Aide-Mémoire without adequate advance preparation would cause further controversy and lead the Filipinos to digging in even stronger in their untenable position. Given our overall strategic interest, we would not be able to avoid involvement. For this reason, we believe the best procedure for all concerned and the one offering the best chance of avoidance of an unpleasant clash between the Filipinos and their best friends is for our Embassy in Manila (preferably Ambassador Williams with President Marcos) to have a frank talk with Filipino officials. Attached as Tab F is a draft which has been cleared with DOD and the Office of the Legal Adviser, and which has been discussed with officers of the British, Australian and New Zealand Embassies here, designed to accomplish this purpose.

Recommendation:

That you approve the attached instructions to Embassy Manila.⁶

1. Source: National Archives and Records Administration, RG 59, Central Files 1967–69, POL 33–4 PHIL–US. Confidential. Drafted by Price and cleared by Peter L. Wallin of L/SPA.
2. As contained in telegram 13143 from London, October 2; attached but not printed.
3. As contained in a telegram from the Australian Embassy in the Philippines to Canberra, October 10; attached but not printed.
4. Dated September 23. (National Archives and Records Administration, RG 59, Central Files 1967–69, POL 33–4 PHIL–US)
5. Neither attached.
6. Bundy approved sending the instructions attached as Tab F; they were transmitted in telegram 276316 to Manila, November 22. (National Archives and Records Administration, RG 59, Central Files 1967–69, POL 33–4 PHIL)