Wednesday, July 20, 2016

No off ramps, only dead ends in the South China Sea

                                              There are no off-ramps.  Only dead ends.

One of the funny/disturbing elements of the UNCLOS tribunal award in Philippines vs. China is the belated public interest in “off ramps” for the PRC, i.e. some way to accommodate the PRC in the South China Sea in a face-saving way.

Funny, because the stated intention of going to court and confronting the PRC publicly was to push China into a legal corner, not guide it down a negotiated off ramp.

Disturbing because, in my opinion, there are no off-ramps.  Only dead ends.

Recently, the pre-eminent Philippine advocate of the arbitration strategy, Supreme Court Senior Associate Justice Antonio Carpio had an extended interview with ABS-CBN News that laid out the carefully-formulated Philippine plan for threading the needle of PRC rage and achieving the perfect outcome.

The problem with Carpio’s “off ramps built of gossamer wings” scenarios is that they’re based on a self-serving and unrealistic premise: that the PRC will eventually swallow its humiliation, come around, and accept the tribunal award:

We have a Filipino scholar, he wrote an article, a survey of decisions of the ICJ the arbitral tribunals. In that article, he said over 95% of decisions of the ICJ, the ITLOS and the other arbitral tribunals were eventually complied with. But initially the losing party will say, ‘We will not comply.’ It has happened several times. The losing party will say, “We will not comply.” They hold demonstrations. They threaten to withdraw but in the end, they comply. It may take time. Compliance may take other forms but the compliance is there if the other party is satisfied. In international law, you don’t expect losing party to immediately comply. It takes time.

Nicaragua flapdoodle

Trouble is the other 5%. Which includes the big daddy of defiance of international law, the US refusal to accept the judgment of the International Court of Justice concerning its illegal support for the Contras and mining of Nicaraguan harbors in the 1980s.

In another interview with The Rappler, Carpio tried to shoehorn the Nicaraguan case into his optimistic narrative. His happy musings probably evolved through convivial discussions over brandy and cigars in the chambers of Paul Reichler, the American lawyer who led the victorious Philippine legal effort at The Hague and had also famously participated in the Nicaragua case back in the day:

It came to a point it “was costing the US tremendously in terms of reputation,” Carpio told Rappler in an interview. “It claims to be the exponent, the number one advocate of the rule of law, yet it was glaringly in violation of international law. The world was telling the US, ‘You violate international law.’ “

Carpio said the US eventually “gave Nicaragua half a billion dollars in economic aid.” Nicaragua’s president, on the other hand, requested the country’s parliament “to repeal the law that required the US to pay the damages.”

“Eventually there was compliance, in a way that saved the face of the US,” Carpio said.

Sadly, this is flapdoodle.  Complete, utter flapdoodle.  And inaccurate, to boot.

Efforts to spin Nicaragua as a favorable precedent to the Philippine arbitration are patently dishonest moonshine.

What really happened was this:

President Reagan mined some harbors in Nicaragua and supported the Contras in the early 1980s as part of an illegal and clandestine effort to overthrow the revolutionary Sandinista regime in Nicaragua.

The Nicaraguan government took the US to the International Court of Justice in 1984 and won big time, receiving a right to damages guesstimated at $12.2 billion, later inflation-adjusted to $17 billion. The United States disregarded the ICJ ruling.  It also used its veto at the Security Council to block Nicaragua’s attempts to get the UN to intervene on Nicaragua’s side.

In 1990, after years of economic warfare and subversion that further impoverished Nicaragua, the Sandinistas were voted out of office and a pro-American government led by Violetta Chamorro came into power.

In order to secure the fortunes of this new government, US President George H.W. Bush arranged for an emergency appropriation of $300 million for FY 1990 for imports of energy and other goods and to forestall the collapse of the Nicaraguan currency.  An additional $218 million was appropriated for FY 1992 and gradually disbursed.

Gradually, because Jesse Helms held up $104 million of it since he felt Chamorro was not purging Sandinistas with adequate vigor.  The money was only released after much huffing and puffing in two tranches in the last year of the Bush administration and the first year of the Clinton administration. Another $75 million was allocated for FY 1992.

Between 1990 and 1992, in return for keeping Nicaragua afloat, the US demanded that the Chamorro government neutralize the Sandinistas politically and militarily, and institute austerity-based free market reforms.

The aid dribbled out in the most demeaning expression of Nicaraguan vassalage. For instance, a check for $20 million was cut once 22,500 public sector workers were “separated” i.e. fired.  Well, let me take that back.  $5 million for the first 15,000 employees, then 3 more payments of $5 each million each payable whenever pink slips could be submitted for another 2,500 employees.

No implied or stated quid pro quo between the half a billion dollars in aid and the ruling in other words. The priority was on stabilizing a newly pro-American government and using aid as a lever to guide and control its policies.

American arm-twisting

Of course, the US had made it clear from the beginning it wanted the ICJ ruling canned and, when Chamorro’s government was deemed stable enough to support this unpopular move, the demand got moved to the front burner. The US  slow walked on the aid it had already allocated but not yet disbursed, and apparently linked repudiation of the ruling to provision of US good offices to restore Nicaragua’s standing as a qualified international borrower.

In 1991 Chamorro capitulated, repealing an inconvenient Sandinista-era law that would make any bilateral negotiations with the United States on the claim subject to awkward debate in the legislature. I find it interesting that Judge Carpio, who made sure the “Enhanced Defense Cooperation Agreement” between the US and the Philippines could re-open bases to the US on signature of the executive branch and without legislative ratification, flubbed this rather significant point in his interview with The Rappler.

Chamorro then flew off to Washington to implore the last crumbs of assistance from an increasingly disinterested US government.

Coverage by Colin MacKenzie at Canada’s Globe and Mail made it clear how the quid pro quo was running:

The United States is still withholding money from Nicaragua because it has dragged its feet on the privatization of companies previously nationalized by the Sandinistas and because Mrs. Chamorro is still seeking to collect part of the $17 billion that the World Court awarded Nicaragua as damages for the U.S. mining of its ports during the contra war.

Subsequently, in September 1991, the Foreign Minister notified the ICJ the suit had been “discontinued.”

A close look at the two years Chamorro spent in the US wringer doesn’t give the impression of the Nicaraguan David confronting US Goliath as an equal thanks to the power of international law.

A Sandinista-sympathetic analysis disapprovingly parsed the events and concluded:

Counting disbursed and as-yet undisbursed donations, plus the $75 million US contribution to Nicaragua’s arrears with these lending agencies, the United States has cancelled its war debt to Nicaragua at a rate of about four cents on the dollar.

Sweet, huh?

Doesn’t quite support the idea that China’s going to come back in a little while, hat in hand, contritely ask forgiveness for defying international law, and shower the Philippines with economic aid if the cloud of the ruling is somehow removed.

Fact is, if the real Nicaraguan precedent were to hold, the Philippines would be subjected to six years of economic warfare and political subversion until it surrendered, then compelled to submit to two more years of extortion, and finally surrender its sovereign claims for the sake of rapprochement with its hostile, supersized neighbor.

China follows US example

The PRC was certainly cognizant of the Nicaraguan precedent and probably communicated to its neighbors in the SCS and the rest of the world that its actions would be guided by the US example and not the arbitral award. Full stop. No ambiguity.

China has planted its flag, in other words, not on the Nine Dash Line, or its pretensions in the South China Sea, or its eagerness to be the nice guy who puts up with getting hosed by UNCLOS for the sake of the liberal international order, but on its prerogatives and credibility as an aspiring hegemon.

And there’s no off ramp for that ambition.

Now, judging by the PRC’s ostentatious belligerence post-award, it’s “walking the talk” in backing up its previous private declarations. And judging by the world’s muted reaction, very few states are saying, “America got a free pass off Nicaragua but you, China, better take your medicine and kiss off the South China Sea.”  At least not to the PRC’s face.

Carpio and his US backers, with their deep familiarity with the Nicaraguan case, probably understood this was the most likely outcome, but reassured themselves (and bamboozled the Philippine public) with the ill-founded expectation that the Philippines — unlike Nicaragua, enjoying the backing of the pre-eminent world power—would prevail and the PRC would somehow back down.

Hope is not a plan, etc. If the arbitration team hoped wrong, well, the region’s in headed for a decade or so of heightened tension, increased military spending, and decreased economic integration.

A dead end, in other words.

Peter Lee runs the China Matters blog. He writes on the intersection of US policy with Asian and world affairs.

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