<![CDATA[Duterte wants a joint Manila-Beijing probe into the South China Sea sinking. Could it be a good idea?]>

In the early hours of June 9, a Chinese-registered ship struck the Philippine vessel F/B Gimver 1, sending all 22 Filipino fishermen aboard tumbling into the sea. The boat, from China's southeastern Guangdong province, fled the scene " leaving a passing Vietnamese ship to rescue the men.

Philippine President Rodrigo Duterte on June 24 said he was open to China's suggestion to conduct a joint probe into the affair, even as he dismissed it as a "little maritime incident" where "there was damage but luckily nobody died".

Duterte's critics have been frank in their opposition to this stance. Senate minority leader Franklin Drilon, a former head of the country's justice department, said "a joint investigation would derogate our jurisdiction and prejudice our claim in the West Philippine Sea", referring to the portion of the South China Sea claimed as Philippine territory.

He also wondered which country's laws would prevail.

Senator Francis Pangilinan, president of the opposition Liberal Party, said a joint probe violated the Philippines' Fisheries Code. In a statement, he warned that "it will never be a fair investigation when one is the oppressed and the other is the oppressor".

Defence analyst and military historian Jose Antonio Custodio disagreed with Drilon but agreed with Pangilinan. Speaking to the South China Morning Post, he said the probe could be confined to investigating the event, leaving out the issue of territorial claims. However, he predicted that both China and the Philippines would "spin this into an accident".

"This would be pictured as an unfortunate incident in which both vessels found themselves," Custodio said. "As a gesture of goodwill it is possible that the Chinese " without recognising the Philippines' exclusive economic rights in that area and not setting aside China's territorial claims in that area " will at most provide some sort of compensation to the victims."

The damaged Philippine fishing vessel F/B Gimver 1. Photo: EPA alt=The damaged Philippine fishing vessel F/B Gimver 1. Photo: EPA

He also said the probe would divert public attention from the fact that the Chinese captain left the Filipino fishermen in the sea, possibly to drown: "It would just be a probe on what happened in the accident."

According to the Maritime Code of the People's Republic of China, the Chinese captain was obliged to "render assistance" to the Filipino fishermen, according to Lauro Baja, Manila's former envoy to the United Nations who was also a two-time president of the UN Security Council.

The only exception to this rule under the code is if the rescue would put the Chinese captain and his ship and crew in "serious danger", Baja said, adding that he thought that section "must have been the reason [behind the Chinese embassy in Manila's statement] that there was a swarm of Filipino vessels which put their ship and their men in danger".

The embassy had earlier claimed the Chinese ship, Yuemaobinyu 42212, was "besieged" by Philippine fishing boats, causing it to accidentally hit F/B Gimver while trying to avoid the other ships.

Baja, however, said the embassy's version "was debunked by some satellite images which were brought to light by University of the Philippines law professor Jay Batongbacal", who is also director of the university's Institute for Maritime Affairs and Law of the Sea.

On Facebook, Batongbacal noted that the images showed the two closest vessels being about three to five nautical miles apart. "What [seven to eight vessel] swarm of night-marauding Filipino fishing boats is China talking about?" he wrote.

Professor Michael Tsimplis from City University of Hong Kong's Commercial and Maritime Law Centre said there were benefits to conducting a joint probe, adding that Beijing and Manila could determine the scope of the investigation beforehand.

He said such investigations normally dwelled on the "causation of the accident ... not the attribution of personal liability, which is a matter for the flag state", though he said the "normal situation would be to include the aftermath of the collision too".

Tsimplis said joint investigations of marine collisions and accidents are an accepted international practice for "establish[ing] what happened and what went wrong for the purpose of improving the safety of navigation and learning lessons that have to be learned".

"First, it establishes a common truth and a common assessment about the facts, therefore removing friction between states and people on what exactly has happened as well as accusations of the report becoming a cover-up," he said.

"Second, it removes any argument about using the investigation of a tragic accident as the basis for a jurisdictional claim, and third, it will facilitate the delivering of witness statements from other fishermen and seafarers " which in this case are likely to be polarised " enabling an objective view to be reached."

An activist holds a banner during a protest against the sinking of a fishing boat by a Chinese vessel at the Department of Foreign Affairs in Manila on June 21. Photo: EPA alt=An activist holds a banner during a protest against the sinking of a fishing boat by a Chinese vessel at the Department of Foreign Affairs in Manila on June 21. Photo: EPA

There is no benefit in using such a probe for the countries' competing claims in the South China Sea, according to Tsimplis, who said there was instead "every benefit in drawing a common position on safety of navigation and upholding safe navigational practices".

The collision took place near the Reed Bank, which China claims as part of its territory within the Nine-Dash Line, and which the Philippines claims is part of its exclusive economic zone and is therefore reserved for Filipino fishermen.

While emotions have been running high in Manila over Duterte's perceived minimisation of the incident, defence analyst Custodio said he did not think it would dent the Philippines' relationship with China.

Yan Yan, a research fellow at China's National Institute for South China Sea Studies, said China's Maritime Traffic Safety Law emphasised the importance of saving human lives, and under the Provisions of the People's Republic of China on Marine and Maritime Administrative Punishment 2003, "any captain or crew [who] escapes from the duty of rescuing human lives will be punished".

"The China-Philippines relationship is now on a healthy track and is perhaps as good as it has ever been," said Yan, who is also a PhD candidate at the University of Hong Kong's law faculty.

"There is no reason for a Chinese fishing vessel to intentionally bump into the Philippine fishing vessel to damage bilateral relations."

This article originally appeared on the South China Morning Post (SCMP).

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