Scarborough Shoal Shadows the Pivot

[For the convenience of casual readers that can only handle so much of Scarborough Shoal at a single sitting, I also posted this piece in two separate helpings:  The Price of the Pivot: Scarborough Shoal and The Ultimate Pivot Pricetag:  A Luxury Resort on Scarborough Shoal. FYI CH]

The PRC is in a pretty solid position, legality-wise in occupying Scarborough Shoal.  

And that means it’s pretty much free to build on it.  Even island-build it.

The United States and the Philippines know that.  

Losing Scarborough Shoal was the price of the pivot.

It’s just hard to admit it.

Back in May 2012, a little-known figure in the US government, one Hillary Clinton, declared that the United States took no position on the sovereignty of the Scarborough Shoal.

[Clinton] voiced concern about Scarborough Shoal, repeating that Washington does not take sides on competing sovereignty claims there but has a national interest in maintaining freedom of navigation as well as peace and stability.

Unsurprisingly, the fact that Hillary Clinton affirmed US neutrality on the issue of Scarborough Shoal sovereignty is not on the lips of every China pundit handwringing over current PRC banditry in the South China Sea and searching for pretexts to block PRC island-building on the Shoal.

Perhaps China hawks find Clinton’s statement something of an embarrassment, especially since it undercuts the policy/legal justification for some of the more extravagant plans for frustrating the PRC’s purported Scarborough schemes—like the brilliant idea of sending SEALS to covertly sabotage PRC dredgers.  Or the even more brilliant idea of sending 4 A-10 Warthogs (air to surface combat) and 2 HH-60G Pave Hawks helicopters (insertion and extraction of special ops personnel)  to put some credibility behind the threat.  Which we already did.

If the PRC can island-build Scarborough Shoal unchecked, it would represent an embarrassing piece of blowback for the pivot, and a pivot-sapping political incubus for pro-US political and military figures in the Philippines.  

The best lawfare gambit available is to declare that dredging the shoal would violate environmental protection standards in UNCLOS; however, the idea that PRC could be targeted by a R2P2 (Responsibility to Protect Polyps) military operation has, for some reason, not acquired its sea legs, perhaps because the idea that the US would engage in an act of war to enforce environmental norms in a treaty it has not even ratified has not quite caught on.

The Scarborough Shoal dilemma is well understood in Manila.

As the crisis evolved in 2012, the Philippines had expressed hopes for a US statement that the Mutual Defense Treaty covered Scarborough Shoal, something along the lines of the US declaration that the Senkakus fell under the US-Japan security treaty.

Remember, pivoteers, that the US returned the Senkakus to Japanese administration in 1979 but has pointedly never acknowledged Japanese sovereignty over them even as the Obama administration affirmed they were covered by the security treaty as “territory administered by Japan”.  The sovereignty issue was supposed to be worked out in negotiations involving China and Japan but the Japanese nationalized several of the islands instead in 2014, a big middle finger to the United States as well as the PRC.  

So, in theory, the Philippines might hope that Scarborough Shoal could merit similar consideration from the United States, as a disputed sovereignty territory that the US has decided, nevertheless, to include under its defense umbrella. 

Problem is, as Hofstra’s Julian Ku points out, the MDT affirms that the obligation of the United States to come to the aid of Philippine armed forces when they are under armed attack in areas under their jurisdiction.  Since Scarborough Shoal is not under Philippine jurisdiction, and there are no Philippine armed forces there to suffer attack, that dog didn’t hunt, at least in 2012.

In May 2012, Hillary Clinton’s refusal to put Scarborough Shoal on the US-Philippine agenda was seen as a humiliation for the Philippines, a sign that the Philippines was a second-tier ally compared to Japan.

In retrospect we might say that yes, it was an affirmation that by virtue of the Philippines’ eviction of US military forces in 1992, it only rated second-tier ally treatment compared to Japan… and it was time for the pro-US element in the Philippines pick up its game.

China hawks in the Philippines (and, I suspect in the United States) did not want to see a positive or dignified future for an essentially non-aligned Philippines mired in protracted and inconclusive bilateral negotiations with the PRC over Scarborough Shoal, fishing rights, hydrocarbon plays and whatnot, perhaps generously larded with the corruption allegedly associated with the PRC-friendly posture of the previous Arroyo government, while at the same time free-riding off the Mutual Defense Treaty. 

Instead, leadership in the Foreign Affairs and Defense ministries pushed for overtly siding with the United States and upgrading the relationship to a more robust level (culminating in the de facto return this year of the US military to Philippine bases under the Enhanced Defense Cooperation Agreement or EDCA), thereby promising the overmatched and underequipped Philippine military and security forces more lethal if not necessarily more effective support from the US against internal as well as external threats.

From that perspective, the Scarborough dispute--a sovereignty beef which could not bring US military power to bear on the Philippines' behalf but virtually dictated bilateral engagement with China--was a dead end.

As I’ve written here, a flock of China hawks sabotaged the mid-year 2012 bilateral negotiations conducted by President Aquino through his envoy, Antonio Trillanes, for both sides to withdraw from the shoal.

As the bilateral crashed and burned, the Philippine government abandoned the bilateral track and turned toward internationalization of the Philippines dispute via UNCLOS…full pivot membership...and an emerging maritime focus that gave the US Navy a potential role in the disputes...

…while leaving the PRC in occupation of Scarborough Shoal.

The pivot had a cost, in other words, and that cost was Scarborough Shoal.

And UNCLOS isn't going to help.

The Shoal is above water at high as well as low tide, so it falls outside of the purview of UNCLOS—and the Philippines’ UNCLOS arbitration. 

 

If the Scarborough Shoal was under water some or all of the time, UNCLOS would rule and the arbitration commission could assign it to the Philippines as part of its EEZ endowment—but it ain’t.

And the Philippines has acknowledged that.

Best UNCLOS can do is either declare that the Shoal is capable of sustaining a human population and economic life, meriting a 200 nautical mile EEZ, unlikely well impossible in its current configuration, or only a 12-mile territorial sea.

As to whose territorial sea it is—and to whom Scarborough Shoal belongs—well, UNCLOS got nuttin’.

To be harsh, the awkward fact is that the Philippines did not “lose” Scarborough Shoal; it threw it away.

I imagine awareness of this politically toxic sacrifice underlies the ostentatious US breast-beating over Chinese plans for Scarborough Shoal, dictates useless Warthog flybys, and contributes to Ash Carter’s determination to up the US-Philippine military game and demonstrate heightened American commitment to the alliance.  

It might even explain the cancellation of Carter’s China trip in favor of a swing through India, Malaysia, and the Balikatan joint exercises in the Philippines.

There's a Philippine presidential election coming up, after all.

In sum, there is no need for the PRC to island-build the shoal to shield it from US-backed sovereignty challenges or UNCLOS-related embarrassment.

So I’ve been a somewhat skeptical concerning Western handwringing about perceived PRC intentions to islandbuild Scarborough Shoal, seeing them as perhaps pivot-promoting alarmism.

But, as Freud said, sometimes a cigar is a cigar and sometimes a threat to build the shoal is…a threat to build the shoal.

My rethink was prompted by the appearance on a Chinese military enthusiasts’ forum of this plan to convert Scarborough Shoal into a world class tourist destination…

…and, more importantly, a piece by Minnie Chan in the South China Morning Post on April 25, reporting that according to “a source close to the PLA Navy”:

China will start reclamation at the Scarborough Shoal in the South China Sea later this year and may add an airstrip to extend its air force’s reach over the contested waters…

SCMP, in Hong Kong, is now owned by Alibaba’s Jack Ma and is not the usual outlet for regional pivot-building scaremongering.  And Minnie Chan has been in the China defense-reporting game for a good while, and her sources are PRC and mainland-related, not so much Pentagon or Filipino.  So if she’s reporting this, good chance it’s getting floated by the PRC side.

And, if references to Scarborough Shoal island building are turning up in the public sphere, rest assured the PRC had already signaled this gambit to the US government privately.  I don’t believe President Obama has to read the South China Morning Post, peruse Bill Gertz, or refresh his Super Camp Military Forum browser tab (the extremely obscure source for the notorious Scarborough reclamation plan image) to find out what deviltry the PRC is promising in the South China Sea.

So the China hawk uproar over Scarborough Shoal island building over the last month has, I suspect, a basis in representations of the PRC government to the US.

 As I wrote in Asia Times, floating a Scarborough island-building scheme might seem to be an own-goal by the Chinese, reinforcing the theme of the PRC as an irresponsible, aggressive revisionist power at the same time the PRC Ministry of Foreign Affairs is rather cannily and cleverly cobbling together a narrative that disputes between China and its neighbors are best handled bilaterally.

However, my thesis is that the PRC is concerned that the United States will look for some way to side overtly with the Philippines to enforce its UNCLOS-defined rights after the judgment goes against China, is prepping an escalation pathway to match any US moves, and is carefully signaling what the path might be and where it might end.  

I await the judgment of legal scholars, but I wouldn’t be surprised if a) EEZs are under the Philippines’ “jurisdiction” for the purposes of the MDA and therefore b) if Philippine naval/air assets experience interference by China in those EEZs c) even if the encounters are with PRC "white hulls" i.e. maritime patrol vessels (I recall seeing rumblings from the USNWC that the converted frigates in the PRC coast guard should be considered “weaponized” because of the fact of their bulk and, in any case, the frigates still retain a couple sets of anti-aircraft guns) and not the PLAN d) the US can invoke the MDT to intervene to protect Philippine military forces against attack.

Which means that the PRC has to be prepared to escalate its game and plan for the contingency that it will come into direct confrontation with US Navy vessels if it tries to mess with the Philippines.  

That doesn’t necessarily mean armed confrontation.  Probably more a careful, steplike exercise in “hassling” by the PRC.

Moves up the escalation stepladder could involve close approaching, impeding, and then jostling US Navy ships FONOPing alone or participating in  Philippine military escorts of fishing and oil exploration vessels seeking to exploit the EEZ claims validated by UNCLOS.  

There is an existing playbook for this sort of harassment.  Interested readers and fans of 1990s arena rock are welcome to view this video showing a Soviet naval vessel bumping a US Navy vessel during a FONOP in the Black Sea.  If all goes according to plan, the foreign boat approaches with its crew on deck wearing life jackets, the officers gather at a suitable vantage point to stare meaningfully at their opposite numbers on the US ship, the helm is given a healthy jerk, the fender-bender is applied, and the caravan moves on.

And if these moves prove ineffective, indeed are welcomed by the US hawks as a welcome escalation in tensions that build the case for the pivot, the PRC tit-for-tat could culminate in…

…the appearance of a luxury resort on Scarborough Shoal!

In other words:

Okinotoroshima-zation!

Which is, in my opinion, what the apparent PRC threats of island building at Scarborough Shoal are all about.

For those of you who don’t obsessively follow and memorize China Matters, Okinotorishima is the secret shame of UNCLOS and the Achilles’ heel of US pivot policy.  I guess that’s why you don’t hear too much about it in the western press.

A full airing here, but Okinotoroshima was a Japanese stunt that took two rocks—an even smaller above surface holding than Scarborough Shoal—poured in more than half a billion dollars to cofferdam and reinforce them…

…and claimed a 200 nautical mile EEZ around them.

As far as I can tell, the reason Japan was able to declare a 200 mile EEZ around this island-building excrescence is because it’s out in the middle of the ocean and there were no surrounding countries that could claim injury.  Although the PRC and South Korea both voiced objections to UNCLOS, they apparently went nowhere.

The idea that the PRC would island-build Scarborough Shoal in order to extend a military threat to Luzon is, to my mind, idiotic.  

In my opinion, the only reason this argument is advanced is to raise a “Red Dragon Loose in SCS” military threat ruckus to obscure the unpleasant fact that there is no effective way to challenge PRC sovereignty claims or legal way to prevent it from building whatever it wants on Scarborough Shoal. 

Imputing a threat to US forces in the Philippines from the PRC on Scarborough Shoal, on the other hand, allows these pesky diplomatic/legal inconveniences to be swept aside by executive order on grounds of national security.

The superior PRC dodge would be to build an ostensibly civilian outpost at Scarborough per the leaked plan ("Hotel", "Tropical Travel & Holiday Area", maybe a casino to really cheese off the Philippines),i.e.  non-military along the lines of Okinotorishima (which has a helicopter pad but is plausibly 100% civilian).

PRC news reports also added an extra wrinkle with reports of plans for floating nuclear power stations in the SCS and also Bohai Bay.

To my mind, this prospect is appalling enough that the pivot into the South China Sea should be jettisoned immediately for negotiations to keep nukes out of the SCS, but that’s just me.

In the context of the US-PRC competition in the SCS, unfortunately, a floating nuclear station next to Scarborough Shoal makes a lot of sense.  It would provide desalinization and power generation capabilities that affirm the habitability of the island (supporting claims for 200 nautical mile EEZ), would help the island withstand a US-led blockade, and by its presence would make the US think twice about firing a few dozen HIMARS missiles at the island to flatten it.

Plunking an Okinotoroshima clone in the South China Sea, nuclear or not, would confound pivot planners with the dilemma of either conceding the legitimacy of the faux-island and its EEZ claims (200 nautical miles would be a completely unviable option given the proximity of Scarborough to Luzon, but the island might very well rate a good deal more than the 12 nautical miles it’s currently expected to get) or suggesting that the Japanese ditch their $500 billion plus investment for the sake of consistency and pivot credibility…

…that’s the kind of price tag that might get the pivot’s attention...

...and perhaps rebuke the strategists who decided to sacrifice the shoal in a geopolitical gambit.