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.

A Quiet Revolution in the South China Sea

Is the PRC Ditching the Nine Dash Line?

Without any ambiguity, the People’s Republic of China has announced that it considers itself and not the United States the boss in the South China Sea.  Its most assertive statement of this principle was to send the HYSY 981 rig, escorted by a flotilla of dozens of ships, into waters that Vietnam claims as its Exclusive Economic Zone for some exploratory drilling, right after president Obama made a trip to Asia (but, tellingly and perhaps unwisely, not to the PRC) to talk up the US pivot.

In keeping with the PRC pattern of avoiding overtly military operations—those that would justify the invocation of existing or new U.S. security alliances with PRC neighbors—the flotilla apparently included no PLAN vessels, and the objectives and disputes surrounding the rig have been characterized in economic/bilateral terms.

In its attempts to present itself as a responsible and competent steward of the South China Sea—and in order to bring Vietnam to heel and isolate the Philippines for the next, much more complex and risky round of “salami slicing”--the PRC might be prepared to make a major shift in its South China Sea maritime claims.

Alert readers (admittedly, China Matters has no other kind) will immediately grasp the significance of this passage from the May 31 People’s Daily:

The truth is, so far China and Vietnam have not reached consensus on delimiting their exclusive economic zones and continental shelves, but the waters in which the oil rig is operated are only 17 nautical miles (31.5 kilometers) from Zhongjian Island of China’s Xisha Islands while about 150 nautical miles from Vietnam’s coast. In other words, the drilling site is located only five nautical miles from the outer limit of China’s territorial sea and is undeniably within China’s exclusive economic zone, regardless of whichever principle is applied in future delimitation.

The People’s Republic of China is claiming the right for its HYSY 981 drilling rig to operate at its current location based upon an EEZ justification, not by its position within the notorious “cow tongue”, the area enclosed by the “nine-dash-line”.

Over the last year there have been several informal indications that the PRC is planning to move beyond the anachronistic “nine-dash-line” as the basis for its South China Sea claims, and haggle with its neighbors on the basis of the UN Convention on the Law of the Sea, with its maritime claims based on sovereignty, territorial waters, and Exclusive Economic Zones or EEZs.

That is big news for the South China Sea and, perhaps, bad news for the United States, which has relied on the patent absurdity of the nine-dash-line claim to justify its role as the sensible adult in the SCS.

For clarification, the general principle is that a coastal state like Vietnam is accorded an EEZ of at least 200 nautical miles or even more if the continental shelf justifies—provided there is no conflict with the EEZ of an island held by another state.

In the case of a conflicting island claim, the coastal claim does not gain automatic precedence; nor is there a standard formula for drawing an EEZ boundary between the two claims.  For instance, there is no principle that the boundary be drawn at the midline between the coastal baseline and the island baseline.  UNCLOS calls for the boundary to be drawn on the basis of “equity”, taking factors like the populations of the immediate EEZ claimants into account.  

Vietnam would clearly get the lion’s share of EEZ in the direction of the Paracels, but its position that its continental shelf claim entitles it to the spot where the HYSY 981 is drilling—and any complicating claims to a Paracels EEZ can be ignored-- is less defensible. 

The PRC position (reflected in the reference to “regardless of whichever principle is applied in further delineation”) is that the Paracels is going to get something, at least something more than five miles beyond Zhongjian Island’s territorial waters, and the HYSY 981 is covered.  

Since we’re talking about the South China Sea, the situation is even more complicated.

In 1996, the PRC drew a single baseline around all the Paracels, essentially treating them as a single archipelagic group; Zhongjian Island, a.k.a. Triton Island is the basis for the southwestern corner of the claim.  The Chinese position is that the archipelagic grouping as a whole (or, per the PRC formulation, “territorial sea”) is, leaving aside for a moment the issue of conflict with a neighboring EEZ, entitled to a 200 nautical mile EEZ beyond the baseline, hence the invocation of the rig’s propinquity to Zhongjian Island as defense of its legality.

This is not kosher by UNCLOS standards; only essentially archipelagic states (like Philippines but not continental states like the PRC and Vietnam) are supposed to enjoy this treatment.  Furthermore, the above-water real estate inside the claim is miniscule, and doesn’t even come close to the UNCLOS standard that the ratio of watery realm to land features should not exceed 9:1.  Therefore, if the archipelagic claim is thrown out, the best the PRC could do would be to claim a 12 nautical mile territorial waters around Zhongjian/Triton Island itself.  Since the island is uninhabited and incapable of sustaining economic life, it gets no EEZ and apparently leaves the HYSY 981 hanging.

However, to further muddy the waters, several coastal states have ignored these restrictions on archipelagic claims when defining baselines for island groups (for instance, Denmark on the Faroes and Ecuador on the Galapagos).

And, in bad news for Vietnam, the PRC has been able to create a simulacrum of human habitation and economic life on Woody Island in the Paracels.  Woody Island is the designated seat of the Sansha Prefecture of Hainan Province, with a small town maintained by a monthly supply boat, an airstrip, and the prospect of patriotic tourism, thereby creating a plausible claim for itself to a 200 nautical mile EEZ …which would also cover the current position of HYSY 981, 103 nautical miles away.

Previously, Vietnamese representatives, perhaps unwisely assuming that the PRC would never abandon the nine-dash-line, had publicly acknowledged there is a case for allowing Woody Island an EEZ.

Therefore, Vietnam appears to be in something of a bind here.

According to an authoritative looking if officially unofficial paper from August 2013 by Hong Thao Nguyen of the Law Faculty of Vietnam National University, Vietnam’s position on the Paracels is based on three principles: sovereignty over the Paracels, rejection of the nine-dash-line, and the assertion that the issue should be addressed multi-laterally instead of bilaterally.

As yet, the world largely follows the U.S. lead and does not take positions on island sovereignty, so point 1 is out.  If the PRC is switching to an EEZ basis for its claims, then point 2 is out.  And if points 1 and 2 are out, there is no strong basis for taking a bilateral spat to a multilateral forum.

And on technical ground, if the PRC shifts the terms of debate for HYSY 981 away from the nine-dash-line to UNCLOS and EEZ, Vietnam’s claims to the spot the rig now occupies do not appear to be a slam dunk.

Adoption of an EEZ dispute formulation would also appear to create a major political problem for Vietnam.

For Vietnam to negotiate an EEZ settlement with the PRC would involve Vietnam acknowledging PRC sovereignty over the Paracels and China’s as yet undefined yet genuine rights to some EEZ treatment.

This, I imagine, is an impossibly bitter pill for the Vietnamese government to swallow at the present time, given the intensity of anti-Chinese anger that roils Vietnam.

And if Vietnam can’t accept PRC sovereignty over the Paracels, the dispute can’t go to UNCLOS arbitration, it’s a sovereignty dispute, and all those carefully parsed arguments about EEZs and penetrating legal critiques of the nine-dash-line are completely irrelevant.

If this is the case, the PRC has rather carefully and maliciously hoisted Vietnam on a cleft stick.

Indeed, beyond asserting the right to drill holes in Vietnam’s continental shelf, Vietnamese acknowledgement of PRC sovereignty over the Paracels may be the key concession that China is trying to extract from its unhappy neighbor.

And maybe that’s the deal the PRC is offering Vietnam and, by extension, ASEAN: an agreement to play by UNCLOS rules if its sovereignty claims in the SCS are accepted.

Beyond categorical declarations of its absolute superiority of its continental shelf claims, Vietnam appears to be trying to find a way out of its dilemma through the politics of outrage: using heated rhetoric and provocative approaches to the PRC flotilla by various vessels in the hope that the PRC will do something so stupid and outrageous that the arcane and fraught issue of conflicting EEZ and sovereignty claims will be superseded by the easier-to-understand and cathartic issue of battling Chinese aggression.

For Americans, this situation would conjure up ironic memories of another provocation in Vietnamese waters, the 1964 Gulf of Tonkin incident that the U.S. hyped as an excuse to sidetrack informed debate and escalate its intervention in the Vietnam War.

Remarkably, even though the global China-bashing machine is on hair trigger, there seems to be little appetite as yet for indulging Vietnam.  Even when a Vietnamese fishing boat flipped and sank in a dustup with the HYSY 981 flotilla—an incident that would have supplied ample grist for the anti-China media mill regardless of the inevitably disputed facts of the encounter-- the international response was remarkably muted.

Whether this is owing to recognition of the fundamental ambiguity of the PRC-Vietnam dispute, the fact that ASEAN is thoroughly divided and cowed by the PRC, or because the US is distracted by its Ukraine adventure and is not ready to get a China crisis on at this particular moment remains to be seen.

Judging by President Obama’s security agenda speech at West Point (where he briefly cited the South China Sea issue but coupled it with a call for the Senate to ratify UNCLOS in order to give the US more standing in the disputes), America is not drawing any red lines in the South China Sea just yet.

As Secretary of Defense Hagel was communicating US resolve at the Shangri La forum, the New York Times treated the world to an astounding backgrounder on the Obama administration’s attitude toward Asia.

But even as Mr. Hagel and the United States have adopted a public posture that backs Japan — and, to a lesser extent, the Philippines, Vietnam and any other country that finds itself at odds with China — some administration officials have privately expressed frustration that the countries are all engaged in a game of chicken that could lead to war.

 “None of those countries are helping matters,” a senior administration official said…

Even if President Obama is suffering from lame duck fatigue and is disgusted with the hand that Hillary Clinton and her pivot dealt him in Asia, it seems counterintuitive that the United States will give a green light to the PRC in its South China Sea dispute with Vietnam.

If the U.S. isn’t ready to throw its weight around on behalf of its buddies, right, wrong, or nuance be damned, then the value of the U.S. deterrent and the pivot are significantly devalued.

Furthermore, Secretary of State John Kerry is the godfather of U.S.-Vietnamese rapprochement and I find it difficult to believe he—or his ally on the matter, John McCain--will let Vietnam take a whipping from China without some kind of riposte. 

The hope that the US cavalry will ride to the rescue, despite its current ambivalence, is probably one of the factors that is keeping Vietnam from sitting down with the PRC for the bilateral talks that Beijing is insisting upon.

But for the time being, the PRC seems to be cautiously enhancing its legal position—and relying on the expectation that the world will get tired of Vietnamese intransigence before it becomes sufficiently outraged by Chinese assertiveness—to gain further acceptance of its interests and rights in the South China Sea.