Wednesday, July 20, 2016

The Real Skeleton in America’s SCS Closet: Nicaragua

Now that the UNCLOS SCS ruling has come down, it’s time to deal with What’s Next?

Not good things, in my opinion, as expressed in my latest at Asia Times.

The diplomatic and strategic wild card, I think, is not the fact that the US hasn’t ratified UNCLOS.  We’re not a party to the Philippine suit, so it’s no big deal.

What causes some anxious moments in Washington and Manila, I suspect, is the Reagan administration’s successful defiance of the International Court of Justice award in favor of Nicaragua back in 1984, and its utility to the PRC as justification for refusing to accept the UNCLOS arbitral award.

My suspicions concerning the genuine heartburn the Nicaraguan precedent causes the pivoteer bloc in its campaign to ostracize the PRC are supported by some strikingly naff statements by the key lawyers on the Philippines side, Supreme Court justice Antonio Carpio and leader of the Philippine legal team Paul Reichler.

In my AT piece I have a couple of quotes from Carpio (go there for the links) about how international law triumphs and the Philippines has nothing to worry about.

From an interview with a TV outlet:

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.

And in The Rappler, specifically addressing the Nicaraguan issue:

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.

I have a lot of fun with Carpio’s ahistorical misrepresentation of the Nicaragua case.  Again, read the AT piece for the details but the US totally reamed Nicaragua.  There was no “half billion quid pro quo”.

I also twit Carpio for his mis-statement that Nicaragua’s president got the parliament to repeal the law that required the US to pay damages.  Actually, they repealed the law that would require legislative debate over any bilateral negotiations with the US concerning the award.  Then the Foreign Minister was able to fax the ICJ saying that Nicaragua had “discontinued” the case.

This state of affairs almost exactly parallels the jiggery-pokery Carpio recently presided over in the ruling the Enhanced Defense Cooperation Agreement or EDCA could be signed by—guess who, the Foreign Minister—without any consultation or ratification by the Philippine legislature.

Amazing lapse, Antonio!

Carpio has an excuse for not keeping up with Nicaraguan affairs, maybe.  But what about Paul Reichler, the lead counsel for the Philippines?  He was actually part of the team arguing the case on behalf of Nicaragua.  What’s he got to say?  Here’s a snip from Economist in 2014:

"Decisions, judgments and awards by international courts and tribunals are complied with in more than 95% of the cases, including by big powers such as the United States," Mr Reichler wrote back. In Nicaragua the US, he noted, had in fact complied with the court's order to stop mining Nicaragua's harbours, and while it had not officially complied with the order on reparations, the judgment helped prod Congress to cut off funding for the Contras.

95% figure looks…kinda familiar.  Maybe Carpio’s “Fililpino scholar” also reads the Economist.  If he’s not just talking to Paul Reichler.

Anyway, let’s unpack the two substantive statements:

In Nicaragua the US, he noted, had in fact complied with the court's order to stop mining Nicaragua's harbours.

Ahem.  Holly Sklar’s Washington’s War on Nicaragua has a nice tick-tock of the operation.  The CIA’s minelaying took place from January through March of 1984.  Pretty nasty, by the way.  CIA engineered gadgets in-house containing 300 pounds of C4 and dumped them indiscriminately into several Nicaraguan harbors.  “Indiscriminate” was, I guess, not a bug but a feature, intended to scare away shippers and cripple Nicaragua’s seaborne commerce.  The campaign damaged nine vessels, including Soviet, Liberian, Panamanian, and Dutch ships.  Two Nicaraguan servicemen died during a dicey attempt to remove the mines with fishing nets.  The mining operations aroused the fury of the countries whose vessels had been damaged, and elicited criticism from Great Britain and France.  All in all, an idiotic and irresponsible sh*t show by the CIA.

Memories of Vietnam escalation were still strong and when it was clear the CIA mining gambit had gotten out of hand, the roof fell in.  In April 1984 Barry Goldwater wrote Casey (as quoted in Sklar’s book):

Mine the harbors in Nicaragua? This is an act violating international law.  This is an act of war.  For the life of me, I don’t see how we are going to explain it.

Obviously, the US didn’t even try.  When Nicaragua (ably represented by Paul Reichler and others) filed the case with the International Court of Justice, the US declined to participate.

But long story short, the mining stopped in March.  It wasn’t stopped as an effort to comply with a ICJ injunction issued on May 10, 1984.

In that injunction, by the way, the ICJ enjoined the United States from jeopardizing Nicaragua’s political independence and sovereignty “by any military or paramilitary activities”.  The US violated that injunction continuously and on a massive scale with its continued support for the Contras until at least 1988.  The only thing it didn’t do was re-mine the harbors.  Could’ve also said the ICJ saved Nicaragua from US nuclear attack with about equal accuracy.

As for 

the judgment helped prod Congress to cut off funding for the Contras.
Congress cut off funding for covert activities in Nicaragua for FY 1985 only, through the Boland Amendment.  Outrage at the mining played a big part and, yes, the ICJ ruling also provided political cover.  But the Reagan administration in response turned to privatizing and internationalizing the anti-Nicaragua campaign through a global initiative (of which only one element was “Iran Contra”) that utterly dwarfed any Congressionally-mandated funding of covert activities.

And in 1985, with privately-sourced lethal aid pouring into the Contra cause despite the Boland amendment, Congress rolled over and let Reagan repackage official US Contra support as “humanitarian aid”.  The ICJ ruling had no substantive impact on US funding for Contra activities.

I, for one, would find it interesting and constructive if the US reversed itself and paid the damages associated with the ICJ case, now around $17 billion.  Small price to pay, one might thing, for bringing balance to the force, international-law wise, and placing the PRC’s tit firmly in the wringer.  But when Daniel Ortega raised the issue back in 2011, there was no outpouring of sympathy from the US.

Hey, Daniel, maybe this is your year! Try again!

Now, as clever lawyering, Reichler’s contributions to fudging the issue of US non-compliance with the ICJ ruling are just fine.  

But if taken as guidance to the Philippines that, as Carpio puts it, the Nicaragua case supports the optimistic prediction that the PRC will comply, it borders on malpractice in my admittedly unlawyerly opinion. 

And if the PRC—like the United States—intends to hunker down and refuse to comply for nearly a decade (the ICJ decided in favor of Nicaragua in late 1984 and Nicaragua’s then non-Sandinista government discontinued the case in September 1991), the idea that “off ramps” are likely to defuse the crisis is delusional.

Carpio, in addition to declaring the PRC will knuckle under, is big on off ramps, as is the rest of the US legal eagle/pivoteer commentariat these days.

Actually, Carpio is HUGE on offramps, as can be seen from his interview with ABN.  He’s got it all: international marine reserves: an underwater peace park!, calling the region the West Philippine Sea only out to the EEZ limit, PRC possibly participating in resource development as a contractor, and, what caught my eye, reasonable rents charged for the PRC’s continued illegal occupation of man-made structures inside the Philippine EEZ…

…places like Mischief Reef!

Carpio opined:

No, China will not just roll over and abandon [Mischief Reef]. There is really no urgency yet for us to ask China to vacate. … But of course China will not vacate. It will take time. Maybe 50 or 60 years from now, that naval base of China will become useless. Technology might make it obsolete. We don’t know. But there’s really no urgency for us to kick out China. In the first place, we cannot do that.

Interesting.  I remember pre-ruling one of the leading SCS lights declaring that the PRC would never vacate Mischief Reef.   Seems like there was a shared position that nothing much was going to happen because of the ruling.

Why the heck not?

The one thing that would bring clarity and prompt resolution to the South China Sea situation would be a Philippine order to the PRC to vacate Mischief Reef.  And how about a Philippine expeditionary force to occupy it?  Isn’t the defiant occupation of an illegal structure a pretty red red line?  And don’t tell me it’s because the US Navy’s dance card is so full it can’t pencil in a Pacific War for this year. 

And by the way, every day the PRC stays on Mischief Reef decreases the likelihood it will ever comply with the ruling.  Because, as Carpio indicated, rent.  The Philippines can start assessing rent today and if the PRC hangs around Mischief Reef for “fifty to sixty years” without paying, the claim is going to be more than China’s GDP.  For a baseline, consider the musings of a worthy at Forbes: 

I wonder how seriously anybody takes these off-ramps as an actual conflict-resolution measure that the PRC will consider palatable.

I think all these magical off-ramps were not constructed for the PRC; they were built for the diplomatic competition between the PRC and the US/Philippines to shape international responses to the ruling.

US position: don’t be afraid to demand that China obey the ruling.  They’re gonna comply in the end.  And we’ve got all these off ramps!


I think on balance most countries, beyond the ally lip service to the United States, gave more weight to the PRC statement than Philippine promises of off-ramp pixie dust, hence the rather subdued reactions.

And the PRC, to maintain its international credibility, is making a big show of not yielding an inch, as they put it, on the South China Sea.  I doubt Duterte will be able to accomplish much in this environment despite his obvious interest in trying to de-escalate, since the pro-US hawks will start demanding that he stand up to the PRC and, at the very least start demanding and accruing damages.

The arbitral ruling pretty much shuts the door on bilateral resolution of disputes and my prognosis is for an indefinite but certainly prolonged frozen conflict in the SCS.

PRC relations with ASEAN are f*cked for a decade, I think, and as much this pleases the zero sum pivoteers and their allies in Japan and the Philippines, I don’t think there’s a lot of international gratitude to the US team for converting the low-level irritation of the SCS dispute to a ten-year drag on the regional and world economies.


Godfree Roberts said...

Great analysis. It's clear that postwar behavior by other SCS claimants has been aggressive and almost shut China out. It won no friends by its forebearance. Here's a repost of a nice comment by Paul Denlinger that introduces yours nicely:
Beijing's rationale is fundamentally different from the US's: The People's Republic is the successor to the Chinese imperial Qing dynasty. For a long time, China was weak, and the British seized Hong Kong, forced the Treaty Ports system on China, and sold opium to the Chinese. Because the central government was weak, it was unable to protect the interests of the Chinese people for nearly 200 years.

Following the founding of the People's Republic in 1949, then China's reforms in 1979, China now has the second largest economy in the world. In order to help China's rejuvenation, the central government exercised control over Hong Kong in 1997 and over Macau in 1999.

The exercise of these claims in the South China Sea is simply the central government in Beijing re-exercising control over islands which Beijing was previously too weak to control. Following WWII, the US Navy patrolled the South China Sea because China was too weak.

In imperial times, what are now Vietnam and the Philippines were all Chinese tributary states. They would all offer gifts to the Chinese emperor every year, and the Chinese emperor would let them run their countries as they saw fit. The Chinese always allowed free trade and transport in the region.

China is now saying that since it is back and is powerful again, it is natural that it will make moves to restore its control over lands and seas it considers to be its own territory. What appears to Americans as a suddenly aggressive move really should not be considered as such. The US should have expected this to happen ever since China's economy started to take off. It was only a question of when it would happen. Paul Denlinger.

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