THREE years after the five-man arbitral tribunal ruled almost entirely in favor of the Aquino government’s maritime claims against China that invoked the Unclos provisions, its real impact has become so crystal clear, yet hardly talked about by US as well as our mainstream media and academe.
Totally unenforceable, the suit only helped China emerge as the unchallenged superpower in the South China Sea. It’s a perfect case of blowback, the most recent version of the law of unintended consequences that has been a curious feature of history. Here’s how and why.
China didn’t respond to the arbitration suit, which it claimed was a US-inspired plot to wrest its sovereign claims, merely through legal debates and propaganda.
Its real response was its feverish work on the ground – or rather, in the waters of the Spratlys. China built artificial islands on the reefs it occupied, making it now the nation with the most extensive and developed network of modern facilities in the South China Sea, complete with airports, piers and huge buildings.
US strategists who played President Aquino and his foreign secretary Albert del Rosario to undertake the arbitration suit—which they thought was a brilliant “lawfare” and “shaming” project against China—must be banging their heads against the wall in regret. Aquino and del Rosario, who thought the suit would cover up their loss of Panatag Shoal to China in July 2012, are of course clueless over their huge role in helping China to dominate the South China Sea.
Short of war
With the island-building triggered by Aquino and del Rosario’s suit, China, as a ranking US general, in a congressional testimony said, “is now capable of controlling the South China Sea in all scenarios short of war with the United States.”
Before the Philippines filed its arbitration suit in January 2013, China’s “real estate” in the South China Sea was the poorest. It controlled only seven reefs, and didn’t have a single island. All of the other claimants had islands, the biggest of which, Taiping, was occupied by Taiwan. We had the second, third, and fifth biggest islands, Pag-Asa, Likas and Parola. Vietnam had the fourth and sixth biggest. Even Malaysia has its Layang-layang island— Celerio to us, Danwan Jiao to the Chinese—which its special forces grabbed only in 1983
Before 2013, China’s most developed outpost was Mischief Reef, which had austere octagon-shaped structures and a barracks built on stilts. This is in stark contrast to Taiping and Pag-Asa’s facilities which had airstrips and buildings to house a battalion, and in our case, even a “municipal” office. Taiwan even billed its Taiping island which has an airstrip as a scuba diving resort with a five-star hotel.
In three years, as we and the West were cheering for the arbitral panel to rule in our favor, China built islands on Mischief Reef and its other reefs, now reportedly with a combined area of 1,200 hectares, six times bigger than the 200-hectare land area of all the Spratly islands before 2013, with modern facilities including deep ports and airstrips that could be – or have been – converted into military combat camps. It wasn’t only China that responded in a similar way, but Vietnam too, which added 50 hectares to the area of their collection—the biggest among all claimants—of six islands and two reefs.
Obviously to send the message right before the Philippines officially filed its suit on Jan. 22, 2013—which del Rosario had announced several times after we lost Scarborough Shoal in July 2012—China started its reclamation works that very month, and feverishly turned its reefs into islands in a year’s time, and then in the next two years, built facilities on them.
There are several reasons that China did this in response to our arbitral suit, three of the most important are as follows.
One, the suit filed against China was the first which, despite its packaging by savvy US lawyers that it was just about maritime claims, challenged in an international venue Chinese sovereign claims in the South China Sea. It turned out indeed to be about sovereignty, as in the case of Mischief Reef. China sees Mischief Reef as part of its Nánshā Qúndǎo, a unit of Hainan province. The arbitral tribunal decided it is within the Philippines’ exclusive economic zone (EEZ), and that it had sovereign rights over it, a ruling that in effect rejected China’s sovereignty.
It was reckless for the US—the arbitration suit was the brainchild of Hillary Clinton’s undersecretary Kurt Campbell—to think that China would merely respond to the challenge through academic discourse.
In street lingo, China’s was an “up-yours” response: “Claim all you want in an arbitral tribunal whose ruling nobody – not even the mightiest superpower the US – can enforce. We will build islands with advanced installations on the reefs we own and control. Just try to expel us.”
Ironically, it was our losing Scarborough Shoal that del Rosario would claim made it necessary to file the suit against China that emboldened it to go on an island-building blitz. Aquino and del Rosario foolishly challenged China over control of Scarborough, first by sending a warship to arrest Chinese fishermen there. It turned out they were so bold to do so since they thought the US would militarily support us – by at least escorting our vessels there to prod the Chinese to leave.
They were so wrong. Even after Aquino and del Rosario went to Washington, D.C. to beg in person Obama and Clinton to do so, the Americans said they had to be neutral in a territorial dispute.
That confirmed to the Chinese leadership that the US will not militarily intervene in a conflict in the South China Sea, and despite all their politicians’ hawkish rhetoric, they wouldn’t dare clash with China even when it meant it was taking over a territory claimed by its ally, the Philippines. That convinced China to go ahead with its island-building project.
Second, China’s massive island-building blitz was one of the classic responses to international disputes, or one might say, even land disputes among individuals: the so-called sunk costs strategy. This means, crudely, that a nation would succeed in convincing a belligerent rival not to invade it if it invests heavily in arms and even a defensive wall.
The billions of dollars China has spent in building its artificial islands, and its facilities as well, was a strong signal to the US that any decision of a tribunal or a court that it has no claims in the South China Sea will be ignored. In another sense, and using images, a team probably of US SEALs could have probably taken over Mischief Reef before 2013. Now it would require battalions to take it over.
Third, Chinese nationalism practically required its government to undertake the massive island-building project. For the Chinese, the South China Sea has been since ancient times part of China’s powerful empires, and even in the 19th and early 20th century, the Chinese had unchallenged sovereignty over islands there.
For the Chinese, China lost control of its islands in the South China because of colonialism in its “century of humiliation” when it was weak and divided. Vietnam’s claims in the area date from the French colonialists taking over the Paracel and the Spratly islands, and handing it over to the Vietnamese when they left Indochina. The Japanese in the 1940s grabbed these islands to make these its base in invading Asian countries, giving them up when it lost the war. We got to be in the Spratlys when Marcos grabbed them during martial law, calculating that he had the backing of the US, which had military bases here.
For the Chinese therefore, it is an incontestable reality that it has sovereignty over these South China Sea islands. Yet it had shied away from forcibly occupying all of them. It has been—believe it or not—pacific in the past decades in not militarily enforcing its claims – except when countries move to expand their hold there.
This was the case when the South Vietnamese tried to occupy the Paracels, thinking the US which was their ally against the North Vietnamese communists at that time would come to their succor. This was the case when China occupied Mischief Reef in 1995, when then President Ramos authorized an American firm to prospect for oil in the nearby Reed Bank.
The US of course did nothing.
Unknown to us, the Scarborough Shoal episode had roused so much nationalist anger against us in China, because of Aquino’s bungling in sending a warship to arrest helpless fishermen in an area clearly marked as Chinese territory (Hungyan Qundao) in all official Chinese maps. (In contrast, our Bajo de Masinloc before 2009 was shown in even official Philippine maps as outside the Treaty of Paris’ polygon that defined our territory.)
China has become the second biggest economy in the world. It therefore has vast resources, and a political system that can channel these to particular agenda at will, that has enabled it to transform what were the equivalent of shacks in the seven reefs in the Spratlys into sophisticated fortifications in three years.
Even as it had declared the tribunal as without basis in UNCLOS, there had likely been a worry among the Chinese leadership that it could have—as in fact it did for three of these reefs—declared these as belonging to the Philippines. The only rational response therefore for the Chinese state was to fortify its holdings. It was after all improving on that adage in property disputes, “possession is nine-tenths of the law.” In this case, the Chinese must have thought, a full island is 100 percent of ownership.
If Chinese President Xi Jinping responded to this challenge weakly and did not strengthen China’s hold on these reefs by transforming them into fortified islands, I’m certain he would have been overthrown.
Xi must be secretly thanking Aquino and del Rosario for being so easily played by the US. So far-reaching indeed have been and will be the consequences of that incompetent Yellow regime.