The personal blog of Peter Lee a.k.a. "China Hand"... Life is a comedy to those who think, a tragedy to those who feel, and an open book to those who read. You are welcome to contact China Matters at the address chinamatters --a-- prlee.org or follow me on twitter @chinahand.
Thursday, April 28, 2016
The Price of the Pivot: Scarborough Shoal
[This is actually the first half of a lengthy piece I had posted earlier today. After some reflection, I
decided it really worked better as a standalone. The second half of the
piece is up as The Ultimate Pivot Pricetag: A Luxury Resort on Scarborough Shoal. Together, the two pieces provide a picture of the past and a possible future for the Shoal.]
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
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 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
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 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
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.
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
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
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
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.
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.