Joint out of joint


Premature it may be to conclude outright the joint investigation saga on the 9 June Recto Bank boat ramming incident is an unsalvageable shipwreck.

Still, the joint probe saga looks like it is floundering at the shoals after the Palace issued clarifications on how the joint probe is expected to work out in bringing about a ‘’satisfactory closure” to an incident which dramatized the traumatic experiences of 22 fishermen left to drown.

Over the weekend, the Palace made it clear both the Philippines and China will hold separate probes over the incident. And it is only after separate probes were over and done with when a “third neutral party” gets involved to resolve whatever differences in the findings that may arise.

Now that the Palace is treading gingerly over the idea of a joint probe, first introduced last 20 June by the Chinese foreign ministry and which Mr. Duterte quickly agreed to on the caveat a neutral country be involved, only shows how this joint probe saga is fast turning out to be a floating naval mine limiting further this administration’s political maneuverability over efforts to dampen a political storm.

It is not at all a surprising development. When China first suggested a joint investigation it clearly sought that only “two sides can exchange initial findings and properly handle the matter through friendly consultations based on mutually recognized investigation results.” By emphasizing “two sides,” it is logical to conclude any proposal to involve a third party was out of the question. It is, therefore, safe to say Mr. Duterte’s tri-party proposal was a monkey wrench thrown into the discussions of a joint probe. It caught China flat footed.

China, as I write this, has not made any official or unofficial reactions on the Palace’s clarifications on the mechanisms of how the joint investigation is to proceed involving a third party.

Understandable it is for our foreign affairs officials to be reticent about publicly disclosing about what is really going on regarding developments on the joint probe idea.

But it is plain to see China, or perhaps a Chinese stooge inside government, may have privately raised the point that any third party involvement raises the specter of China violating its avowed policy to resolve any issues involving the West Philippine Sea (WPS) through bilateral negotiations.

For us unused to diplomatic niceties, this policy means China wants only to talk on a one-to one basis with any country it finds at odds with over WPS issues. For reasons of her own, China finds any involvement of an independent third party a risky proposition.

This is evident in how China dealt with the country’s UN arbitral win, when it refused to participate in UN’s legal processes as well as subsequently rejecting the arbitral ruling.
Aside from this rock-like political stance, there is also another interesting point why the joint probe does not point to quick resolution to the Recto Bank incident — countries must do separate investigations.

In a report on the Recto Bank incident the Hong Kong based South China Morning Post pointed out “under international maritime law, ramming incidents are covered by a little known treaty known as the Convention on the International Regulations for Preventing Collisions at Sea or COLREGS, which entered into force in 1977.”

Both China and the Philippines are signatories to this treaty, which is some sort of rules and regulations governing private sea vessels not only on how they should physically look out in the seas but also on how they conduct themselves while maneuvering in open seas.

According to the same news report that while COLREGS “is not intended to assign blame or liability” it is there to ‘’determine accountability’’ and to prevent similar incidents in the future.

Under the treaty, China, through its Maritime Safety Administration, must conduct an investigation over incidents like the Recto Bank collision. It is only after the investigation could the findings be used in a court of law by any injured party.

It must be emphasized, however, that COLREGS is good only when there is a conclusive ramming incident. It is in this context, therefore, why there is political need to plant doubts whether the Recto Bank incident was an accident or not – it allows the Chinese vessel to avoid being penalized under COLREGS.

The joint probe, therefore, is dicey should the Philippines decide to prove there was a collision or an allision between boats while China insists on proving the Chinese vessel was “besieged.”

It is not hard to see why the joint probe saga ends even before it begins when two sides hold different positions.

But, of course, when both the Philippines and China wholeheartedly agree at the start that the Recto Bank incident was a mere maritime accident, any further investigation is rendered useless since there are no contradictory sides to the dispute.

All these, of course, should it all happen, will complicate matters still further — it still does not change the fact that Filipino fishermen were indeed left to drown.

How this government will handle or maneuver in face of the fact Filipino fishermen were left to drown will be keenly watched out for; and altogether that will be another explosive issue.

Even as all these are taking place, domestic critics of this administration were also vociferously raising uncomfortable issues about the joint investigation.

Critics are one in saying a joint Philippines-China investigation risks the possibility the country is waiving its rights of ownership on the oil-rich Recto Bank, which the 2016 Hague ruling expressly made part of the country’s 200-nautical mile Exclusive Economic Zone (EEZ).

It is clear, therefore, that “sovereignty and territorial integrity” issues are pretty much involved in the joint probe saga. These uncomfortable issues cannot be easily dismissed.