South China Sea Strategies for other nations (Not China)

Blackstone said:

The bottom line is, the case for very strong US presence in Asia is overwhelmingly clear, and widely supported by regional countries, so we don't need lies to make the argument. Neocons/neolibs do the nation harm when they fabricate events and evidence to advance their case, but they're too blinded by the light to see it.

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Blackstone said:

That's why the arguments American officials and intelligentsia use to advance their case must be based on the truth, the whole truth, and nothing but the truth, supported by cold hard facts, absent of fabrications.

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An international tribunal in The Hague delivered a stinging rebuke to China last week, ruling that China's claims to nearly the entire South China Sea were invalid.

The decision also questioned the legality of China's claim of — and construction on — several reefs also claimed by the Philippines, which brought the case. China says it won't abide by the ruling. And some in the Philippines worry China will go ahead with building activity on Scarborough Shoal, a section of rocks and reef which it seized in 2012. The shoal sits just 110 nautical miles from the main Philippines island of Luzon.

"Every reef they've seized they've made into an island," says Antonio Carpio, a senior associate justice of the Philippines Supreme Court. "What makes Scarborough Shoal exceptional? Nothing."

Carpio is a vocal defender of the Philippines' territorial claims in its dispute with China. He says a Chinese presence on Scarborough Shoal would threaten not only the Philippines, but also U.S. forces using Philippine bases under a new, enhanced defense cooperation agreement.

"If you have an airfield there, maybe it will take just 15 minutes for the fighter jets there to reach Manila," he says. "And the U.S. forces using Clark [Air Base] and Subic [naval base] are all within range."

That fact is not lost on the United States. The U.S. has consistently said it has no dog in the fight over conflicting claims in the South China Sea. But in recent months the U.S. has conducted a series of high-profile freedom of navigation operations in the disputed waters, near the artificial islands China has created there.

In late June, two U.S. aircraft carrier strike groups conducted joint operations in the Philippine Sea ahead of the tribunal's decision. And U.S. warplanes based at Clark Air Base conducted patrols near Scarborough Shoal.

"Definitely the U.S. has sent some strong signals to the Chinese that they're willing to do more than they're used to," says Jay Batongbacal, director of the Institute for Maritime Affairs and Law of the Sea at the University of the Philippines.

Batongbacal thinks the increased U.S. presence and the ruling of the court may force China to hit the pause button.

"Even their strategists would know, I think, that the Scarborough Shoal would be a tipping point for the U.S. and Japan, given how the situation has radically changed," he says. "Because it would complete the so-called strategic triangle that could finally establish full control over the South China Sea, and they would know that the U.S. and Japan will not allow that to happen easily."

But does the Scarborough Shoal really represent a red line for the U.S. — one worth the risk of open conflict with China?

Richard Heydarian of Manila's De La Salle University isn't so sure. He's the author ofAsia's New Battlefield: The USA, China and the struggle for the Western Pacific.

"We already heard this red line statement on Syria, and clearly saw how [it was] not [a] red line after all," he says. He says many Filipinos, including the new president Rodrigo Duterte, fear the same "artificial posturing red line" on the Scarborough Shoal.

Heydarian says that mistrust of U.S. support helps explain the Philippines' tempered response to the court's verdict.

In return for "the Philippines not flaunting and taunting the verdict," he speculates, "China will give guarantees in the short term at least that it will not up the ante, it will not establish facilities in the Scarborough Shoal and will actually perhaps give Filipino fishermen more access to that area."

That hasn't happened so far. Filipino fishermen who tried this week were again turned back by Chinese vessels.

But China and the Philippines have been cautious — at least with each other — in their reaction to the tribunal's ruling. There's an expectation here that this restraint will last, at least for a few months. The softer approach, adopted by new Filipino President Rodrigo Duterte, runs in stark contrast to the rancor that characterized relations between China and the Philippines under his predecessor, Benigno Aquino III.

Jay Batongbacal expects the two sides to sit down for bilateral talks on solving their dispute peacefully.

"As long as they don't make the situation any worse by taking an even harder line," he says, or "additional unilateral action, I think there will be some room, at least, for both parties to step back from the collision course that they seemed to be on and work out a mutually acceptable solution."

Carpio, the Supreme Court justice, agrees that the Philippines and China will likely sit down and talk, especially about exploiting natural resources beneath the sea. But he doesn't expect China to compromise on Scarborough Shoal. He expects China to fill it in and build, similar to what China did with with Spratly Islands further to the south. The Philippines can't stop it, Carpio says. It's up to the Americans.

But how?

"I don't know the answer to that, whether they can enforce that red line or not," Carpio says. "But they will lose a lot of credibility if they say there is a red line and the red line disappears."

He says it doesn't just matter to the Philippines. Japan, Vietnam and other countries engaged in maritime disputes with China will take note of what Washington does next.

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Yvrch said:

I have the same question about current US alliance system in Asia. With all these tough talks withstanding, will the US deliver when the time comes against China? Not like NATO, these alliances don't have any deep cultural affinity or roots in each other, mostly functional in existence, ie when winning you have friends, when it turns to loss nobody waves the flag, just pure and simple cold hard calculations. China can incrementally tighten the screw layer by layer, step by step up to T minus one and takes them for a shake down ride to see if this interesting anatomy of alliance system has any functionally working fully developed physiology, or a robust physique to stare down the barrel and sacrifice blood and tears for a shoal most Americans don't even know exist a few weeks ago.

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Yvrch said:

So then the question is more about how to stop it than starting it, it seems.
It is really interesting postures that USN and some in the government are taking vis-a-vis China in SCS disputes. But I believe the fiasco of this for-profit commercial company in the Hague is just a distraction for China, not a complete detour. She can wait as SCS sits just right there, all the time, as it was before, as it will be forever.

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THE ROCK of contention was the Philippine legal team’s “biggest worry.”

But in the end, the status of Itu Aba, the largest feature in the disputed Spratly Islands in the South China Sea, turned out to be one of the Philippines’ most significant scores in its challenge to China’s claim to almost all of the South China Sea in the Permanent Court of Arbitration in The Hague.

For two solicitors general who led the team in the Philippines’ biggest international legal battle, the classification of Itu Aba as a rock, not an island, has been the greatest relief.

The UN-backed tribunal’s decision meant that the feature, long under the control of Taiwan, which calls it Taiping Island, does not entitle any claimant to a 370-kilometer exclusive economic zone (EEZ), precluding any overlap with the Philippines’ nearest coast in Palawan.

It is among the highlights of the unanimous ruling handed down by the tribunal on Tuesday, invalidating China’s sweeping claims in the South China Sea, nearly a full grant of the Philippines’ position on maritime entitlements in the heavily contested waters.

“Now I can tell you. At 5 p.m. on Tuesday, my worry was Itu Aba. Because we really didn’t know how the tribunal was going to rule,” said former Solicitor General Florin Hilbay, who argued the Philippines’ case before the tribunal.

“When the ruling was released, that was Ben’s (Supreme Court Associate Justice Alfredo Benjamin Caguioa) first question: “What’s the ruling on Itu Aba?”

‘Biggest worry’

“It was the biggest worry,” said Supreme Court Associate Justice Francis Jardeleza, also a former solicitor general.

Jardeleza was the government’s chief trial lawyer when it decided to initiate arbitration proceedings against China in January 2013.

Hilbay, who joined the Office of the Solicitor General in the same month but largely to handle the country’s defense for the reproductive health law, took on the role when Jardeleza was appointed to the Supreme Court in August 2014.

Had the tribunal ruled otherwise, Jardeleza said, it would have spelled further danger of encroachment by other claimants into Philippine waters.

Had the tribunal ruled that Itu Aba was an island, its EEZ “would reach the coast of Palawan and Reed Bank (Recto Bank),” a feature within the Philippines’ EEZ where the country had been exploring for oil and gas.

Whether Itu Aba should be included in the case was the subject of debate within the legal team and among outsiders who strongly supported the Philippine claim—a matter that Jardeleza and Hilbay disclosed only after the case had been decided.

Differences in legal strategy at the time had even drawn for Jardeleza allegations of betrayal, particularly from Associate Justice Antonio Carpio, a staunch supporter of the Philippine case.

Risky for PH

“In the beginning, nobody said, ‘Include Itu Aba.’ Nobody. Not (Paul) Reichler (the Philippines’ lead lawyer), not the Department of Foreign Affairs (DFA). Nobody,” Jardeleza told the Inquirer in an interview on Thursday.

“Nobody wanted to mention Itu Aba because the risk was, if the tribunal ruled that it was an island, there would be an overlap of the EEZs,” he said.

The feature was not in the original complaint against China that the Philippines brought in January 2013.

In the following months, Jardeleza’s said scholars started taunting the Philippines in news reports for missing the largest feature in the Spratlys in its case.

Jardeleza said members of the legal team were one in saying the Philippines should not amend the complaint to include Itu Aba, as that “would be admitting that you forgot about it.”

“The political reason is, if you were the one to include it and you lose politically, the next stage is that an aircraft carrier of China will park in Palawan and they can say, ‘Well, we have overlapping EEZs so we can go up to here.’ And that’s because of us,” Jardeleza said.

Written into ‘memorial’

Still, Reichler, of the international firm Foley Hoag who was commissioned for the case because of his experience in international arbitration, wrote 17 paragraphs about Itu Aba in the Philippines’ “memorial” in the case.

The memorial—a “long explanation of the complaint,” according to Hilbay—was in the works at the time.

Then President Benigno Aquino III eventually decided to include Itu Aba in the memorial, which was filed in March 2014, through mere mention, which made it “an incidental issue that might be relevant for deciding the major issues,” Hilbay said.

Later, it was the tribunal itself that asked the Philippines to submit further pleadings tackling Itu Aba—the strategy that Hilbay and Jardeleza said they had been eyeing all along.

“[The tribunal] knew Itu Aba was going to be crucial because it’s the largest feature. The tribunal itself was the one who compelled us to discuss Itu Aba, so it’s they signaling to us that we could not decide a lot of the issues you raised without looking at Itu Aba. But it’s the tribunal, not the [Philippines, that raised it as a feature whose status must be clarified],” Hilbay said.

It’s a rock

In the end, the Philippines won by asserting its position that Itu Aba was a rock, not an island. Taiwan, which occupies Itu Aba and has built an airport on it, rejected the ruling.

Apart from Itu Aba, Panatag (Scarborough) Shoal, Burgos (Gaven) Reef North, Chigua (McKennan) Reef, Mabini (Johnson South) Reef, Calderon (Cuarteron) Reef, and Kagitingan (Fiery Cross) Reef were also classified as rocks.

Zamora (Subi) Reef, Hughes Reef (no Philippine name), Panganiban (Mischief) Reef, Ayungin (Second Thomas) Shoal, and Gaven (Gavin) South Reef were classified as low-tide elevations that do not generate any maritime entitlement.

Recto (Reed) Bank was classified as a “completely submerged” feature within the Philippines’ EEZ.

Knock on Jardeleza

The inclusion of Itu Aba in the memorial was raised against Jardeleza when he was being considered for appointment to the Supreme Court.

Jardeleza was accused of betraying national interest when he pressed for the deletion of the Itu Aba information from the memorial.

Carpio raised the matter as a question on his integrity before the Judicial and Bar Council, the body that short-lists and endorses nominees for justices to Malacañang.

Chief Justice Maria Lourdes Sereno joined Carpio in opposing Jardeleza’s nomination.

“I kept quiet, even if I was being called a traitor. I did not respond. Why? Because if I had confirmed that we were fighting about Itu Aba, what do you think the Chinese intelligence would have done? It would have meant you were confirming that we were scared. So I kept my peace,” Jardeleza said, dealing with the controversy for the first time.

Hilbay described the disagreement between Carpio and Jardeleza as “a debate over strategy.”

“It was tactical,” he said.

Jardeleza said the hurtful allegations caused him sleepless nights but he held on to the discipline of keeping mum.

“My only complain is, just because we disagree, I’m seen as less loyal to my country … especially if you (Carpio) have nothing to do with this case,” he said.

“Do not say the other guy is less patriotic than you are. We are all patriots,” he said. “[It] really hurts to be called a traitor by somebody who has nothing to do with the case.”

Jardeleza said he and Carpio maintained “civil” professional relations on the Supreme Court.

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Blackstone said:

A sanguine take from Bonnie Glasser (a heavy weight in neocon policy circles), and it shows the difficulty of US formulating workable strategies to contain Beijing in its own backyard. Nevertheless, Glasser's suggestions might be the best course of actions for all involved, in the short-run, especially those that are delusional about China meekly accepting the PCA opinion paper. In time, it'll be painfully obvious to all Beijing will not stop imposing its own Monroe Doctrine. Then what?

Shaping China’s response to the PCA ruling

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In former Solicitor General Hilbay's view, it was better for Recto Bank to remain a disputed area, even with the presence of the Chinese Navy, as long as the Philippines' claim stands

MANILA, Philippines – It would have been a miscalculation, if not a tactical error, on the part of the Philippines had then acting Solicitor General (SolGen) Florin Hilbay and his predecessor Francis Jardeleza gotten their way on the West Philippine Sea case.

Official communication of Hilbay to Malacañang sometime 2014 showed that the SolGen had clear misgivings about the inclusion of Itu Aba in the pleading or memorial filed by the Philippines with the arbitral tribunal in March 2014.

His main argument was: a decision by the arbitral tribunal recognizing Itu Aba as an island would be in China's favor because it would entitle Beijing to an exclusive economic zone (EEZ). The EEZ is an area 200 nautical miles from a coastal state’s baselines, within which the state has exclusive rights to fish and exploit other resources.

If Itu Aba was declared an island, its EEZ would overlap with the Philippines' EEZ in Palawan, which covers the oil-rich Recto Bank (Reed Bank). This overlap could mean that the arbitral tribunal would have no jurisdiction over the Philippines' claim and boost China's position. (READ:

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)

In Hilbay's view, it was better for Recto Bank to remain a disputed area, even with the presence of the Chinese Navy, as long as the Philippines' claim stands. Recto Bank or Reed Bank is known to be

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and had been the subject of previous explorations.

In its ruling on July 12, however, the United Nations-backed

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rather than an island. In addition, the tribunal also classified Reed Bank as a feature within the Philippines’ EEZ.

The historic case had captured global attention, because as Paul Reichler’s law firm,

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, said in a statement, “it involves critical issues relating to China’s expansive claims over some 90% of the South China Sea, an area of major strategic importance through which over 50% of the world’s commercial shipping passes each year.”

As a result of the ruling that also invalidated China’s claim of exclusive rights and jurisdiction within its so-called “9-dash line”, the Philippines and other coastal states in the area can now fish and explore for oil, gas, and other resources.

Elephant in the room

Hilbay and his predecessor, Francis Jardeleza, shared the same view while the Philippines’ legal team, led by Reichler, argued for the inclusion of Itu Aba in the memorial.

The original claim or complaint filed by the Philippines against China on January 22, 2013 was silent on Itu Aba, the largest feature in the disputed Spratlys. At this time, Jardeleza was SolGen, and would later be appointed to the Supreme Court in August 2014.

But Reichler wanted to amend the claim because excluding it would have been tantamount to ignoring the elephant in the room with regard to the Philippine position. He prepared more than a dozen paragraphs on Itu Aba and included it in the memorial that was to be filed later.

As

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, Jardeleza deleted the relevant paragraphs and reportedly argued this would appease China and help restore relations with the Asian superpower.

But in a recent interview with the Inquirer, Jardeleza said, “Nobody wanted to mention Itu Aba because the risk was, if the tribunal ruled that it was an island, there would be an overlap of the EEZs.” He was also reported as saying, amending the complaint “would be admitting that you forgot about it.”

When he got wind of Jardeleza's deletion, Reichler sought a meeting with Aquino to discuss the memorial and warn him about the implications of taking out references to Itu Aba. Reichler and two other lawyers waited for more than 3 hours for that meeting which never materialized, according to a source privy to what happened.

It was then Justice Secretary Leila De Lima who relayed to Aquino the concerns about Itu Aba. She arranged a meeting with then Foreign Affairs Secretary Albert del Rosario and Jardeleza, who reportedly said the inclusion of Itu Aba would offend China and that there really was no need to include it since it would just delay arbitral proceedings.

It was De Lima who had the ear of former president Benigno Aquino III and it was she who persuaded him to approve the inclusion of Itu Aba in the

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.

Aquino eventually sided with his justice secretary and gave his imprimatur on Itu Aba.

China's position

In December of 2014, China published its position paper in an apparent response to the memorial filed by the Philippines. In that paper, China said the tribunal has no jurisdiction over the case, even as it refused to file a counter-memorial.

Towards the last quarter of the following year, the tribunal asked the Philippines to respond to a question on Itu Aba. What was the Philippine response to claims “it is capable of human habitation?”

Hilbay did not want to answer the question. After he got

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in June 2015, he reportedly said he would instruct Reichler to write the tribunal to say it should not rule on Itu Aba. Some members of the legal team were alarmed because it would have been tantamount to throwing away the case. It would have spelled sure loss for the Philippines.

Rappler tried to reach Hilbay for an explanation of his initial stance on Itu Aba. He has not replied to our request for comment as of posting.

Taiwanese moves

In January 2016, then

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, known in Taiwan as Taiping Island, and declared it was "an inherent part of the Republic of China". He cited supposed historical documentary evidence that attests to the presence of freshwater on Itu Aba to boost China's position that it was habitable, and therefore an island.

When Taiwan intervened at the last minute and made mention of Itu Aba before the arbitral tribunal, it asserted there was drinking water. Dogged research by the American lawyers for the Philippine legal team yielded documents that refuted the Taiwanese claim.

In the end, the Philippine team was able to introduce evidence based on earlier studies that said before 1912 (when the Republic of China or Taiwan was created), there was no drinking water on Itu Aba that would have made human habitation possible.

Referring to Taiwan's intervention, a member of the Philippine team said, “We exposed them. They submitted a dishonest pleading.” It was one of the reasons why the Philippines won. – with reports from Paterno Esmaquel II/Rappler.com

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