Whim, not rule of law

For the first time since 2012, Filipino fishermen are back to fishing in the waters of Panatag Shoal—a breakthrough made possible by President Duterte’s state visit to China last month. There is ambiguity over the terms of the agreement that allowed Beijing to lift its blockade of Panatag (also known as Bajo de Masinloc or Scarborough Shoal), or indeed whether there was an agreement in the first place. This ambiguity is good in the short term, but dangerous for Philippine interests in the long run.

It is good that fishermen like Aniceto Achina and Rodel David, with dozens of others from Bataan, Zambales, and Pangasinan, have returned home with large catches, and unharmed by Chinese coast guard personnel. As the Permanent Court of Arbitration ruled, Filipino fishermen enjoy traditional rights to fishing in Panatag, and China was wrong to block them from exercising those rights.

The development also allows Filipino fishermen who have been forced to sail longer for smaller catches to focus their energies on the bounty in Panatag, about 10 hours’ boat ride from the western coasts of Luzon.

“We have prepared our boats for trips to other fishing grounds, but since some of our fellow fishermen have started fishing at the shoal again, we will join them,” David told the Inquirer.

But the conditions that allowed the fishermen to return to Panatag are mysterious. It was one of President Duterte’s aims, in his visit to Beijing, to impress upon his hosts the importance of lifting the blockade, but during his visit he declined to sign any agreement to make the return of Filipino fishermen possible. There was, simply, an understanding. Eventually, it became clear that Philippine officials had opted out of a proposed agreement that would have required the use of language like “allow” or “permit”—which would have been inimical to the Philippine position on Panatag.

And yet, despite the lack of any such agreement, Beijing did lift its blockade. It seems clear now that Chinese coast guard vessels continue to stand guard in Panatag, and there remains some questions over some Filipino fishermen who were able to fish in the shoal’s interior waters. Dozens of fishermen have returned to the area we define as part of Philippine territory, and have been able to fish in peace.

But can we really say that this fact is, as argued vigorously on Facebook, “a victory, period”? That would be to give too much credit to the Chinese, who are in a position to block Filipino fishermen again, if they so wish.

The ambiguity is at best a temporary set of enabling conditions. It allows President Duterte to claim satisfaction with the Chinese response; it does not bind Philippine officials to any language that would recognize Chinese authority over Panatag. At the same time, it allows Beijing to lift the blockade without the need for a limiting document; it does not bind China to any course that would prevent it from imposing the blockade again.

So the ambiguity is helpful in that carefully limited sense; for the longer term, however, it puts the Philippines at a disadvantage. Having won a clear decision, fair and square, about traditional rights to Panatag Shoal, the country would fritter away the import and the consequences of that decision if it doesn’t seek to apply it.

Fisheries official Laureano Artagame told Reuters: “There is already a decision by the international arbitral court … so why are the Chinese still there?” That is the question.

“Yes, there’s some leniency now, there’s no more harassment. But there is still anxiety, [the fishermen] still worry.”

The problem with the return of Filipino fishermen to the waters of Panatag, then, is that it is contingent on Chinese goodwill; it is at the mercy of Chinese whim, rather than the rule of law.