ASEAN as UNCLOS Collateral Damage

Things fall apart.  Especially with a helping push from the United States.  The world’s easier for America to manage if it’s broken into smaller, weaker, and more vulnerable and manageable pieces.  That, I think, is one of the lessons of the post Cold War era.  The USSR fell apart.  Yugoslavia fell apart.  So did Sudan.  Iraq and Syria are both deemed partition-worthy.  The dissolution of Pakistan is now a serious topic for hardliners.  So is the disintegration of the People’s Republic of China.

So it’s not a big surprise that, after less than a decade of deep US engagement, (the first US Ambassador to ASEAN was designated in 2008), the ASEAN bloc is looking rather shaky.

That’s the context for my most recent piece for Asia Times, Does TPP Matter? Does Singapore Matter?  

 It takes as its point of departure Singapore PM Lee Hsien Loong and President Obama’s joint unwillingness (apparently abetted by a cooperative press corps) not to acknowledge the elephant in the East Asian parlor-- the UNCLOS arbitration decision against China--and instead focus their remarks on the relatively boring issue of the TPP.

Fact is, I think Singapore’s hopes of using TPP as an integration mechanism that boosted the “centrality” of ASEAN and the role of Singapore as indispensable honest broker are collateral damage of the US push to impose the rules of the international liberal order on the East Asian region.

The Philippines, with the discreet encouragement of the United States, provided a big shove to the ASEAN structure by taking its dispute with the PRC over maritime rights in the South China Sea to UNCLOS and an arbitration commission.

The diplomatic environment in East Asia has, shall we say, gracefully degraded from multi-lateralism (ASEAN) to bilateralism (the pre-2011 Philippine-PRC approach) to unilateralism (the Philippines taking their case to UNCLOS & the PRC refusing to participate).

With the local regime for diplomatic integration in ruins, the coast is clear for the US to declare a security vacuum and fill it with a coalition of the willing centered on the United States, Japan, and Australia. 

In this context, support of TPP no longer looks like a gambit to affirm the centrality of ASEAN, and more like the giveaway to multinationals its critics claim it is.

The conventional narrative, of course, is that ASEAN couldn’t satisfy the Philippines, and it had to go elsewhere to slake its lust for justice.

Not quite true.  As the leaked memorandum of the Philippines’ back channel envoy to China, Antonio Trillanes, indicates, the Philippines’ move to arbitration was a rejection of bilateral talks with China, not a reaction to ASEAN dysfunction.  The PRC and Philippines were deep in bilateral talks on the Scarborough Shoal issue and the PRC had put the Philippines on notice not to internationalize the issue at ASEAN. The Philippine team under foreign minister Alberto del Rosario decided to blow up the PRC talks—and abandon Scarborough Shoal, the purported focus of Philippine concerns—by taking the matter to ASEAN.  

According to Trillanes, he recommended in an executive Cabinet meeting on July 5 that Aquino adopt a bilateral approach to resolving the territorial dispute with China, especially that over the Scarborough Shoal.

…
Trillanes told Aquino that the Chinese made the commitment to pull out the remaining three CMS vessels if the Philippines does not internationalize it by raising the issue to the Asean Regional Forum scheduled for July 12. The Chinese, he said, also assured him that they would not put up any structure around the shoal.

Del Rosario, however, pushed for internationalizing the dispute. Trilllanes narrated:


“I clearly remember … Henry Bensurto with a PowerPoint presentation telling everybody in the meeting that the annexation of Scarborough Shoal by China would be used as a springboard to claim Western Luzon. Sec. del Rosario proceeded to present that China had almost 100 vessels in and around the shoal…

According to Trillanes, there were actually only three Chinese vessels in the shoal.

Del Rosario carried the day with his rather dubious case with the background support, I’m guessing, of Aquino.

So del Rosario knew that if he raised the issue at ASEAN a) the PRC would block it and b) the bilateral talks would collapse.   For maximum rancor, Del Rosario invoked the appeasement of Hitler analogy, and the Philippines washed its hands of both ASEAN and bilateral talks and filed its case under UNCLOS.

Ironically, the one thing UNCLOS won’t do is remove the PRC from Scarborough Shoal, the purported dagger at the heart of Luzon, the intolerable threat less than 200 miles from the Philippines, and the supposed inspiration for ditching ASEAN and going the UNCLOS route.  It’s an above-high-tide-elevation out of UNCLOS jurisdiction, the PRC occupies it, is staying there and, if they really want to get d*ckish about it, the PRC can islandbuild it into a ginormous airbase and UNCLOS and the Philippines can’t say boo.

Victory!

Victory, unironically, I think for the United States, which wanted to see the terms of engagement with the PRC switch from the economic track—on which the PRC enjoys an advantage—to the military/security track (USA! USA!).

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.

It’s called No off ramps, only dead ends in the South China Sea.

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: 

China May Owe The Philippines $177 billion in South China Sea Rents and Damages

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!

PRC position: WE.ARE.NOT.COMPLYING

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.

Nine Dash Line is Dead

Long Live ?

As relatively muted reactions to the Philippines v. China arbitral tribunal award come in from ASEAN and EU, it appears likely that the PRC at the highest level traded an undertaking to finally abandon the nine-dash-line in return for international forbearance on declaration of China as an international outlaw for ignoring the ruling.

I suspect the PRC pitch involved, Let’s keep things civil at least until China is done hosting the G20 meeting in Hangzhou in December.

I'm guessing the Obama administration went along, to a point.

It’s not going to be easy for the PRC to wangle any face-saving agreements from its neighbors because, as I write in my Asia Times piece, Scorched Earth Ruling on S China Sea, the tribunal left basically zero for the PRC to work with.

Xi Jinping’s going to have his plate pretty full, not only with the daunting diplomatic challenge but also, I guess, the prospect that this will weaken him politically at a rather difficult juncture in his term of office.

Something of a dilemma for the PRC’s neighbors as well, whose options are pretty much narrowed to “claim the EEZ rights the tribunal UNCLOS has given you and endure PRC retaliation in return” or “wheel and deal with PRC and face patriotic anger” or, in the case of the Philippines’ President Duterte, worse.  Worse being the threat of impeachment already issued by  the pro-US and China-hawk factions in Manila if he is deemed to violate Philippine sovereignty in working out a modus vivendi with the PRC.

Good news for the PRC’s zero sum strategic competitors, US and Japan, as I write over at AT:

I am not an adherent to the “South China Sea” = “China’s Sudetenland”–or “China’s Sudetenzee” for you German speakers—i.e. a springboard for aggression and conquest.  The PRC, in my opinion, hoped to leverage its South China Sea claims in order to wean the Philippines from the United States and Finlandize Vietnam in order to strengthen a ring of sympathetic states around the South China Sea.

This sort of vassalage is anathema to the US and China-hawk and pro-US elements in South East Asia, and the UNCLOS ruling is an important step in efforts to cripple the PRC as a positive and significant economic force—and supplier of attractive economic-friendly “security goods” like lighthouses, coast guard fleets, and so on—in the South China Sea.

In other words, the whole South China Sea megillah, in my opinion, is about rolling back the PRC’s influence in Southeast Asia by limiting the geopolitical leverage it might have obtained from being the big guy in the SCS.

Game not over, but it appears likely that the PRC’s influence down thataway has peaked and its efforts will move the other way: trying to prevent the US from playing the same game in the other direction and tilting the various powers down there in a pro-US/anti-China direction.

Gonna be tough.

The pivot dynamic is favored by confrontation and polarization, and the UNCLOS ruling provides plenty of opportunity for that as the Philippines and everybody else study how to exploit the PRC's vulnerability and claim their EEZ rights.  Japan may also add some gasoline to the fire by pursuing UNCLOS arbitration over a gas field development beef in the East China Sea.

There’s also a nice opportunity for a regional war in the mix, thanks to the PRC’s apparently ill-conceived move to island-build Mischief Reef and Subi Reef on top of non-LTE features.  Per the UNCLOS ruling, these are now illegal man-made structures inside the Philippines EEZ and the Philippines is within its right to demand that the PRC vacate them.

If the Philippines seized those structures and the PRC tried to get them back, I think that would probably trigger the Philippine-US Mutual Defense Treaty.  The MDT is intentionally sketch on backing the Philippines in offensive operation outside its sovereign territory, but it does stipulate that the US will come to the defense of Philippine forces under attack.

And, quite frankly, in the current atmosphere the US might be happy to fudge interpretation of events and the MDT enough to intercede on behalf of a Philippine expeditionary force if it made a play and encountered PRC resistance.

The China hawks are already fleshing out these scenarios in consultation with their allies in the Manila establishment, I expect.

So, as I wrote over at AT, the PRC isn’t leaving the SCS…but the job of staying there just got a lot harder and more expensive.  

And dangerous.