US neutrality in Scarborough: blessing or bane?

I’m not at all surprised that Uncle Sam opted to be neutral in our on-going row with China on the Scarborough Shoal. Fact is -other than maintaining freedom of navigation in the South China Sea; it is not to the national interest of the United States to engage its biggest creditor in any controversy. Furthermore, since it gave us “independence”, the US has never recognized our claims to the waters found in the metes and bounds of the Treaty of Paris. They have argued consistently that what it bought from the Spaniards was the land territory of the Philippines, never mind that the treaty itself uses the qualifier “archipelago”, which in ordinary parlance refers to islands and waters constituting a unified whole. In fact, not too long ago, the Americans already made it very clear that notwithstanding the Mutual Defense Pact between the Philippines and the United States, the later would not come to our rescue if an armed conflict should erupt between China and us over the Spratly’s. And why would they? Our problem, simply put is – Uncle Sam has never bought our argument that the Spratly’s and the Scarborough are ours.

The reason for the American non-recognition of our water boundaries has to do with the fact that to date, it has not become a party to the United Nations Law of the Sea (UNCLOS). It is logical hence for it not to give recognition to sovereign rights in the Exclusive Economic Zone (EEZ), a right provided for the first time in the UNCLOS, when it has not itself consented to recognize such a regime. This is sad given that the UNCLOS provisions on the EEZ and the continental shelf were either borrowed from contemporary US practice, or triggered by them.For instance, while the US has not recognized the EEZ, it has instead recognized “fishing rights” over a body of water with the same scope and breadth of the EEZ, or up to 200 nautical miles from a country’s baselines. . Anent the legal regime applicable to the continental shelf -where bulk of newly found oil and natural gas deposits have been found – it was in fact the American “Truman “ declaration that asserted the exercise of American sovereignty over its “natural extension of the landmass” that triggered the recognition of sovereign rights over the continental shelf.This is not to say that the US will forever be neutral in the West Philippines Sea controversy. As American authorities have stated, their interest is to maintain freedom of navigation in the sea that carries at least 30 percent of all sea navigation from north to south in this part of our woods. Certainly, any act on the part of China that would impede this freedom of navigation will necessarily be a threat to the national interests of the United States in the region.

In any case, it was ill advised of our policy makers to appeal to the United States for military assistance in the resolution of this dispute. One, the use of force under international law, sans a UN Security Council Chapter 7 resolution or unless done in self-defense- is illegal under international law. Full stop. What were our policy makers thinking? Did they think that war could solve this controversy?

Certainly not.

Moreover some politicians in China would want nothing less than an escalation of the controversy. This would had been inevitable had the United States come to our recue. China is today undergoing a political crisis of sorts when its rising political star, Bo Xilai, recently figured in a scandal. The heir apparent to the highest post in the Chinese politburo was recently fired and his wife ordered to be investigated in connection with the murder an Englishman. What has been unfolding now in China is a race to fill in the vacuum created by Bo’s expulsion from the politburo. Like our own politicians who can smell a great political opportunity, it would have been a disaster had the US decided on a more aggressive role in the ongoing spat. This would have given some Chinese politicians tremendous opportunity to invoke Chinese nationalism against “US meddling”. The result could have led to a military confrontation reminiscent of the Vietnam War of the 1970’s with the modification that the South China Sea and the Philippines may be the theatre of war. Thank goodness hence that Uncle Sam decided in the manner that it did. The alternative would have been all-out war.

In any case, I reiterate that because the law, the UNCLOS, is on our side, the time is ripe to submit this controversy to the mandatory and compulsory jurisdiction of the International Tribunal on the Law of the Sea (ITLOS).