All of a sudden, pivoteers around the world are getting noticeably anxious about the possibility that a new Philippine president might go all wobbly on following through on the US-endorsed strategy to confront the PRC’s South China Sea maritime claims through arbitration under the United Nations Convention of the Law of the Sea a.k.a. UNCLOS.
And they have started muttering about the danger of a new PRC island building outrage, this time at the Scarborough Shoal, a rich fishing ground that the PRC occupied under murky circumstances in 2012 and serves as a flashpoint for aggrieved Philippine nationalism.
These two issues are not unrelated.
There are some understandable reasons why Philippine politicians might have second thoughts about the wisdom of “internationalizing” and “multilateralizing” the dispute with China through the UNCLOS process, which is expected to yield a decision within the next two months.
First of all, everybody believes that the PRC, as it has repeatedly, emphatically, and publicly proclaimed, will not respect the arbitration commission’s decision. Since UNCLOS has no enforcement mechanism and the United States, which might have the capability and resolve to enforce the ruling, has never acceded to UNCLOS in any event, a favorable ruling for the Philippines (which is universally anticipated), simply deepens the legal morass.
Second, the arbitration strategy, in my opinion, is a rather spectacular strategic and tactical misjudgment. In addition to the lack of enforcement mechanism, UNCLOS leaves a sizable loophole for the PRC to claim territorial sea and EEZ rights by virtue of its numerous island, atoll, and LTE (low tide elevation) holdings in the South China Sea even if the Nine Dash Line is invalidated. The PRC has already, in effect, “retreated” to the islands—enlarging them, developing them, integrating them into the PRC civil and military structure—and does not intend to leave them. There is no international compulsory arbitration measure to determine sovereignty of a landform. The United States, which takes no official position on territorial sovereignty disputes, would have to take the legally and diplomatically dicey step of overturning that policy and starting a shooting war with the PRC to evict it from the islands and turn them over to…somebody, since Vietnam and the Philippines also dispute their ownership of some of the features among themselves.
Third, Philippine hesitation over climbing back into bed with the United States as a host for US military forces, and letting the US put the Philippines on the front lines of the anti-PRC containment alliance. The Philippines eviction of the United States from its military bases in 1991 is still a matter of national pride, and the (split) decision of the Philippine Supreme Court to sidestep some pretty clear restrictions on foreign military bases in the constitution to declare the legality of the Enhanced Defense Cooperation Act (EDCA), which gives the US the right to place equipment and “rotate” personnel in and out of eight bases in the Philippines is not universally beloved.
Philippine forces, unlike South Korean and Japanese militaries, are underpowered and underfunded and have difficulty keeping the overbearing US military at arms length. The US preferentially cooperates with the Philippine National Police Special Action Force as a reliably pro-US asset. Unfortunately, it helped get 44 SAF personnel killed in a catastrophically botched operation at Mamasapano in January 2015. The scandal that has been thoughtfully hushed up to protect the reputation of President Aquino but may very well haunt him legally as well as politically and morally to the end of his days, and has heightened suspicions about the quality and character of US involvement in Philippine politics via defense cooperation.
Fourth, don’t discount Chinese stringpulling. There are a lot of business people of both ethnic Chinese and none ethnic Chinese derivation in the Philippines who might be interested in a more cooperative attitude toward the PRC for economic motives or in response to PRC blandishments, and whose influence might be felt at the level of one or more of the competing presidential candidates.
Not too surprising, therefore, that the pivoteers have been anxious to compel the presidential candidates to commit to upholding the UNCLOS route and insisting, if the Philippines gains its expected victory, that the PRC respect the vindicated EEZ claims.
On February 26, 2016, the architect of the UNCLOS legal strategy, Philippine Associate Supreme Court Justice Antonio Carpio, called on presidential candidates to affirm they would stick with the arbitral process:
“Presidential candidates must take their position with regard to the South China Sea dispute. If they are elected and they become President, and if this case is not yet decided, are they going to continue with the arbitration or withdraw the arbitration?”
Carpio said the UN tribunal might release a ruling on the Philippine arbitration case “before the May elections or at least before the new President assumes office.”
“And once the new President assumes office, there’s already a decision, and if the decision says [China’s claims] are void [and that] we are entitled to a full [370-km] EEZ, then I don’t see any President giving that up,” he said.
In remarks in Manila last Friday (March 20, 2016), the diplomatic point man for the arbitration strategy, now retired Foreign Minister Alberto Del Rosario added another wrinkle:
Asked about his advice for an incoming administration during a luncheon hosted by the Makati Business Club last Friday, del Rosario said it should continue on with the Philippines’ current South China Sea policy. …
Del Rosario also stressed the importance of the tribunal coming to a decision soon given recent Chinese actions in the South China Sea – including island-building activities and construction as well as ongoing militarization – which had “seriously heightened tensions.”
Those actions, he said, “further highlight the urgency of an early promulgation of the decision.” Del Rosario had earlier said that the Philippines was expecting a ruling in May.
Del Rosario’s remarks were echoed by a report issued by the flagship of the American pivot enterprise, the Center for Strategic and International Studies. Its Asian Maritime Transparency Initiative stated:
The timing of the decision by the Permanent Court of Arbitration in The Hague on the Philippines’ case against China’s nine-dash-line claims has critical geopolitical implications for Asia’s security. Specifically, a decision delivered well before the Philippine presidential election this May would allow the administration of President Benigno Aquino to respond strategically and with continuity, whatever the outcome
A decision delivered after May would in effect roll the dice by putting a new leadership team in Manila in charge of managing the court’s determination.
Interesting confirmation, if any was needed, of the hand-in-glove relationship between US pivot practitioners and their allies in the Philippine government, and a cringeworthy example of over-the-top lobbying of what’s supposed to be an impartial UNCLOS legal process.
It is possible that this flurry of statements is part of a broad effort by advocates of an aligned anti-PRC/pro-US posture to box in otherwise unwilling presidential candidates and force them to continue with an initiative that, for all the intangible psychic benefits it offers to Filipino patriots eager to confront the PRC, is an economic and diplomatic cul de sac.
An additional factor has now intruded into calls for the Arbitration Commission to issue its ruling at once: Scarborough Shoal.
Pivot strategists are publicly weighing the possibility that the PRC will exact the ultimate pricetag operation to punish the Philippines for its defiance: geoforming the Scarborough Shoal (whose fishing ground PRC vessels now control as a maritime asset) into a habitable territorial asset, with all the contested sovereignty/unilaterally claimed seas and EEZs/absence of compulsory arbitral let alone enforcement mechanisms that territorial assets involve.
Senator John McCain, a reliable bellwether/interlocutor for China hawks at the Pentagon, told Bill Gertz of the Washington Beacon on March 10:
“I am increasingly concerned that China may seek to next reclaim and militarize Scarborough Shoal, which sits just off the coast of the Philippines.
The US Navy obligingly stepped up to stir the pot, with PACOM offering this nugget to Reuters on March 19, 2016:
The United States has seen Chinese activity around a reef China seized from the Philippines nearly four years ago that could be a precursor to more land reclamation in the disputed South China Sea, the U.S. Navy chief said on Thursday.
Richardson said the U.S. military had seen Chinese activity around Scarborough Shoal in the northern part of the Spratly archipelago, about 125 miles (200 km) west of the Philippine base of Subic Bay.
“I think we see some surface ship activity and those sorts of things, survey type of activity, going on. That’s an area of concern … a next possible area of reclamation,” he said.
Richardson said it was unclear if the activity near the reef, which China seized in 2012, was related to the pending arbitration decision.
The Philippine foreign ministry said it had yet to receive a report about Chinese activity in Scarborough Shoal.
The Philippines was more cautious:
A Philippine military official who declined to be identified because he is not authorized to speak to the media said he was unaware of a Chinese survey ship in the area.
“China already has de facto control over the shoal since 2012 and they always have two to three coast guard ships there. We are also monitoring their activities and movements there,” the official told reporters.
“There are no indications China will reclaim Scarborough Shoal.”
The PRC response at the Ministry of Foreign Affairs March 18, 2016 press conference, well…:
First, the US military said that China’s current construction on the Huangyan Island was a move of further militarization. Has China noticed such remarks? How do you respond?
A: On your first question, we have noted that officials from the US military have made multiple comments on the South China Sea issue, and kept hyping up and creating tensions. Given the fact that certain country often deploys cutting-edge offensive weapons including missile destroyers and strategic bombers in the South China Sea, it is ludicrous that such a country would keep accusing others for militarization and blaming China for carrying out justified and necessary defense development on its own territory.
The wording of the question does imply that construction is going on, but the MOFA spokesperson handwaves it away to go with the usual dodge on neither confirming or denying military-related construction on any particular island while reserving the PRC’s right to do whatever anywhere in its claimed SCS holdings.
Nice and vague. By everybody.
A sign that the PRC might be thinking about reclaiming Scarborough Shoal?…or wants the Philippines to worry about that?…or the United States wants the arbitral commission to believe it (and rush its decision)?…or China hawk psyops specialists are just yanking the Philippine political chain by raising the specter of a fresh PRC outrage against Philippine sovereignty to drive the presidential election debate in a favorable direction?…
…or, maybe, all of the above!
Peter Lee runs the China Matters blog. He writes on the intersection of US policy with Asian and world affairs.