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The Real Skeleton in America’s SCS Closet: Nicaragua
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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.

(Republished from China Matters by permission of author or representative)
 
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  1. “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.”

    So what? How exactly will the Philippines collect? And what if at some point the PRC might feel it is provoked enough to send a few million troops across the water to protect their ethnic brothers and sisters who will no doubt be oppressed in the Philippines? It’s a lot easier projection of practical force than what the US can do without things going nuclear.

  2. 5371 says:

    The Filipinos, or rather the US-owned lawyers among them who pulled this stunt, are out of their depth, metaphorically as well as literally. An extra-legal confrontation between Duterte and his enemies, which I would think probable sooner or later, could render the whole thing moot.

    • Replies: @Ray
  3. Priss Factor [AKA "Anonymny"] says: • Website

    I look at the map, and it looks like the islands that China claims are far closer to Filo-land than to Chinee-land.

    I think the Chiners are being greedy.

    • Replies: @Joe Wong
  4. Priss Factor [AKA "Anonymny"] says: • Website

    China is clearly in the wrong and acting like a huge a**hole and driving asian nations into arms of US.

    Just look at the extent of Chinese claims on the map.

    It is ridiculous. Instead of gaining trust and respect by way of share and share alike with other nations, China is positioning itself as the new imperial Japan of old.

    There is no way all those Asian nations are gonna side with China. China is pushing them into arms of US. Chinese are petty and stupid. They fail to see the big picture.

    http://www.realinstitutoelcano.org/wps/portal/web/rielcano_en/contenido?WCM_GLOBAL_CONTEXT=/elcano/elcano_in/zonas_in/asia-pacific/ari60-2015-chinas-growing-assertiveness-in-the-south-china-sea

    • Replies: @5371
  5. 5371 says:
    @Priss Factor

    I don’t think you can play it straight. You need your shtick. If your heart isn’t in babbling about Amy Chua and pooters again, nothing wrong with taking yourself out of the game for a couple of plays until inspiration returns.

  6. Joe Wong says:
    @Priss Factor

    I look at the map, and it looks like the island of Australia that White claims is far closer to Filo-land than to Europe-land.

    I think the White are being greedy.

    • Replies: @prosecutemax
  7. @Joe Wong

    So, your response to the previous commenter’s legitimate point – that this Chinese policy is greedy and stupid – is to draw an irrelevant comparison to the existence of Australia? How about addressing the argument, please. Name ANY rational, legitimate policy goal that China has (other than jingoistic imperialism) that justifies its actions. You can’t, and neither can Peter Lee, which is why he’s frantically grubbing around for examples of the United States failing to comply from U.N. rulings issued decades ago, in order to throw a veil of respectability over China’s actions.

    • Replies: @DB Cooper
    , @Ray
  8. @DB Cooper

    Thank you for your post. That at least provides some well thought responses, and I did find the articles informative. I would say in response to both: Then how is that the U.N. found otherwise? With respect, it doesn’t seem that China has repeatedly asked for “cooperative exploitation of the region”, when it has planted an artificial island in the region and repeatedly harassed U.S. flights in the area. China claims sovereignty over the entirety of the South China sea as a sort of “exclusion zone”. This indicates that Chinese claims are based on nationalistic muscle flexing, and little else of moral substance. They have claimed territorial rights at sea that belong to no other country on the face of the earth. They aren’t entitled to those claims, and shouldn’t get them. And in response to Mr. Lee’s foolish drawing of moral equivalence between the U.S. and China, by groping around for an obscure example of the U.S. not complying with the court’s ruling in one instance in the past: China needs to “cool its jets”. If you could summon up Kaiser Wilhelm from the grave, I’m sure he would agree that looking at it in retrospect, he should have taken a less belligerent tone.

    • Replies: @DB Cooper
    , @Historian
  9. DB Cooper says:
    @prosecutemax

    “Then how is that the U.N. found otherwise?”

    I guess this is the problem. People who are on this site are probably aware of the line of nonsense spewed out by the MSM and hence are more skeptical of what they read in the press. Nevertheless they are still gullible. This shows the power of the MSM.

    No, the U.N. does not found otherwise. In fact the International Court of Justice, which IS an U.N. agency has put out a statement clarifying that it has nothing to do with the arbitration. The agency that does the arbitration is NOT an U.N. agency.

    Here is the website of the International Court of Justice with the statement. Notice the U.N. logo on its site.

    http://www.icj-cij.org/homepage/

    Here is the agency that does the arbitration. Notice the U.N. logo is conspicuously absent.

    https://pca-cpa.org/en/home/

  10. Historian says:
    @prosecutemax

    China’s claims to the South China Sea are based on possession of the only habitable island in the region, Taiping Island (Itu Aba). Under UNCLOS, habitable islands get a 200-mile exclusive economic zone.

    However, Taiping Island is still controlled by the Republic of China (Taiwan). The artificial islands were created to give China a base in the region that does not restart the civil war.

    The German Empire allowed a weak ally, Austria-Hungary, to drag it into a general European war. China has carefully avoided entangling alliances of that sort. They stood by and allowed India to dismember Pakistan in the 1970s.

    • Replies: @Ray
  11. Ray says:
    @prosecutemax

    Those who talked about distance is missing the whole idea sovereignty. Sovereignty is based on initial discovery, initial occupation, initial naming etc. Greenland is part of Denmark, the Channel Islands are part of UK, the Canary Islands are part of Spain, Christmas Island part of Australia. St.Pierre is next to Canada but belongs to France. Itbayat island is around 200km from Taiwan but is over 350km from Luzon. Why isn’t China disputing it? The reason is simple, China does not consider that islands chain its territory.

    Sabah and Sarawak are also very far from Kuala Lumpur. Malaysia has no reason claiming them with a straight face. Sabah is closer to the Philippines and was leased from the Sulawasi Sultanate, whose current Sultan is a citizen of Philippines. Now that Philippines want it back, should Malaysia give it up?

    https://en.wikipedia.org/wiki/North_Borneo_dispute

  12. Ray says:
    @Historian

    “Philippines alleges that Huangyan Island and other related islands and reefs in the South China Sea belong to the Philippines; however, the Treaty of Paris (1898), the Treaty of Washington (1900) and the Convention between the United States and Great Britain (1930) state clearly that the west limit of the Philippine territory is 118 degrees east longitude, while Huangyan Island and Nansha Islands are obviously not Philippine territories as they are located completely west to the 118 degrees east longitude.

    After independence, the Philippines’ domestic laws and relevant treaties have all reaffirmed the legal effects of the above- mentioned three treaties and once again expressively defined that the west limit of the Philippine territory is 118 degrees east longitude.

    But after 1970, the Philippines illegally occupied eight islands and reefs in China’s Nansha Islands through four military operations. That’s how the territorial disputes arose between China and the Philippines”

    There is no way China or any country can stop the creation of Bangladesh. There are internal issues in East Pakistan and India seized the opportunity.

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