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.