ABN # 65 648 097 123
Background Briefing: Second Thomas Shoal: Turning the Tables on China Carlyle A. Thayer March 27, 2014
[client name deleted] Q1. In your assessment how dangerous is the current standoff between China and the Philippines at Second Thomas Shoal? It seems to be the most potentially dangerous tinderbox now in the whole South China Sea. ANSWER: The current impasse at Second Thomas Shoal has the potential to result in a minor physical confrontation or mishap between Chinese Coast Guard ships and Philippine resupply vessels. But it is unlikely to ignite into a shooting match. This is because the Philippines will not use force to resupply the marines at Second Thomas Shoal. When the Philippines responded to the first blockage of resupply by using an airdrop it conceded to China the right to restrict entry to the area. Q2. Although options open to the Philippines are clearly limited, what are the possible remedies to defuse the tensions there? ANSWER: There are no good choices for the Philippines. As long as China keeps up the pressure the Philippines eventually will be forced to withdraw the marines and concede Second Thomas Shoal in the same manner as it conceded Chinese control over Scarborough Shoal. The Philippines is an orphan on this issue. Any action that the Philippines takes to assert its sovereignty over Second Thomas Shoal will be widely viewed in the region as an unnecessary provocation. If the Philippines attempts to send Coast Guard escorts along with a resupply ship China will up the ante. Chinese ships will interpose themselves and prevent resupply. China will also engage in a high volume propaganda campaign charging the Philippines with altering the status quo by attempting to build on Second Thomas Shoal. The following options are open to the Philippines: One, conduct an information campaign directed at regional states and the international community about the situation at Second Thomas Shoal. This is likely to entrench China’s presence at Second Thomas Shoal. Two, attempt resupply by sending escort ships along with the resupply vessel. The world’s media should be provided the means to cover this effort. If China blocks resupply, the Philippines should take the matter to the United Nations Security
2 Council arguing that China’s actions constitute a threat to peace. China will veto any resolution not to its liking. Three, organize a massive Filipino flotilla of civilian craft to sail to Second Thomas Shoal to bring supplies and gifts to the beleaguered marines. Provide escorts to monitor this flotilla. Four, consult with the United States in an effort to obtain a public declaration of support similar to U.S. affirmations that Japan has administrative control over the Senkaku islands. Five, issue an invitation to U.S. Marines to join their Philippine counterparts on Second Thomas Shoal for a practical workshop on maritime surveillance. Conduct repeated follow on workshops Q3. Some Philippine officials fear that China might take over or occupy this shoal if the Philippines submits its memorial to the Arbitral Tribunal on or before March 30. Do you think this is a strong possibility? What are China’s intentions at Second Thomas Shoal? ANSWER: It is doubtful that China would react to the submission of the Philippines memorial by seizing Second Thomas Shoal. China has only to wait it out until it exhausts the Philippines’ capacity to resupply the marines. The submission of the memorial only begins the arbitral process. The Arbitral Tribunal, once it receives the memorial, will review it to make two determinations. First, does the Philippines have a case in international law. And secondly, does the Tribunal have jurisdiction to hear the case. Any answer in the negative will benefit China by preserving the status quo. If the Arbitral Tribunal decides in the affirmative, the process of reaching a decision on the Philippines claim will take time to resolve. China has plenty of opportunity to pick its moment t make further encroachments. The longer time it takes the tenure of the Aquino (and Obama) administration will run out. China may hope to influence the next Philippine government. Q4. The U.S. has called China's blocking of Philippine supplies to its troops at Second Thomas Shoal ‘provocative.’ What are the stakes for the U.S. in this p articular standoff over the Second Thomas Shoal and how do you think the U.S. will handle this dilemma? ANSWER: U.S. credibility is on the line. Already the Obama Administration is being lambasted for not showing leadership on Syria and Russian intervention in the Crimea. At the same time, the U.S. is negotiating enhanced defense engagement with the Philippines in order to increase its rotational presence. What good does an increased U.S. rotational presence serve if it does not deter China? Second Thomas Shoal represents a special case. It has been inhabited by Filipino marines continually since 1999. This is in contrast to the situation at Scarborough Shoal. The U.S. does not want to be drawn into a conflict with China or see it relations with Beijing negatively influenced over Second Thomas Shoal. U.S. inaction will only spur China to step up its pressure on the Philippines. China is seeking to use specific examples, like Second Thomas Shoal, as an object lesson to regional states as it advances its sovereignty claims in the South China Sea.
3 China is mainly motivated to squelch the Philippines and its vocal and legal opposition to Chinese assertiveness lest this inspire other regional states to do the same. Bit by bit China hopes to condition regional states into accepting its hegemony. The U.S. and the Philippines need to work out a counter-strategy to oppose China. The U.S. and the Philippines need to work out an imaginative strategy to resupply Second Thomas Shoal and maintain a permanent Philippine presence there. This strategy should be aimed at turning the tables and presenting China with the choice of escalation or backing down. The failure of the U.S. to provide more than diplomatic support to the Philippines risks undermining U.S. credibility in both Manila and Beijing.
Suggested citation: Carlyle A. Thayer, “Second Thomas Shoal: Turning the Tables on China,” Thayer Consultancy Background Brief, March 27, 2014. All background briefs are posted on Scribd.com (search for Thayer). To remove yourself from the mailing list type UNSUBSCRIBE in the Subject heading and hit the Reply key. Thayer Consultancy provides political analysis of current regional security issues and other research support to selected clients. Thayer Consultancy was officially registered as a small business in Australia in 2002.
ABN # 65 648 097 123
Background Briefing: The Philippines Case to the Arbitral Tribunal: What Comes Next? Carlyle A. Thayer March 29, 2014
[client name deleted] A very important deadline is coming near, the deadline for the Philippines to submit its memorial to the United Nations Arbitral Tribunal. We request your assessment of the following issues: 1) On March 30, the Arbitral Tribunal will start judging the Philippines’ lawsuit against China’s territorial claims over the South China Sea. Could you assess the case’s progress? ANSWER: On March 30 the Arbitral Tribunal will receive the submission from the Philippines formally setting out its legal case. This submission is called a memorial. Before the Arbitral Tribunal can proceed it must make two determinations. First, it must determine if the Philippines has a case well-founded in international law. Second, the Tribunal must determine if it has competency (responsibility) over the legal matters raised. The Tribunal must make an affirmative decision on both questions before it can proceed. The Arbitral Tribunal must also provide China with a copy of the Philippines’ memorial and call for comments. China has thirty days to reply. China will most likely reject any approach from the Tribunal. 2) According to many sources, regarding China’s role and status in the international community, the lawsuit will take longer than just one or two years, and the tribunal will not make any landmark judgment. What is your assessment? ANSWER: International law specialists hold a range of views. The Philippines case is unique and so any comments on what the Arbitral Tribunal is likely to do and how long it will take is pure speculation. Some international lawyers, for example, say the Arbitral Tribunal will complete its task relatively early – within two years – because China is not opposing the Philippines. Other international lawyers claim that the Arbitral Tribunal will shy away from a really major decision because of its political ramifications. Still other international lawyers say the Philippines’ case has many weaknesses and that the Tribunal will take a narrow approach to its decisions. 3) In your assessment, what role will the US, as a close ally of the Philippines, play in the lawsuit?
2 ANSWER: The United States government will not become involved. US policy is not to take sides in territorial disputes but to urge the contending parties to resolve their disputes through peaceful means including international law. 4) The US and the Philippines have recently strengthened cooperation, allowing the US to use more military bases of the Philippines. Will this bring pressure on China regarding territorial disputes in the South China Sea? ANSWER: The US and the Philippines are about to conclude their negotiations on ”enhanced defence cooperation” allowing for the increased rotation of US armed forces through Philippines’ military bases. This will not have a direct impact on China because China is using civilian coast guard vessels – not military warships – to enforce its sovereignty. The increased US presence in the Philippines is mainly aimed at reassuring regional states that the US will remain engaged in Southeast Asia. The US will take action if China attempts to interfere with freedom of navigation, freedom of overflight and unimpeded lawful commercial activities. The US is not bound to consult with the Philippines to take action if China encroaches on any island or maritime feature in the West Philippines Sea acquired by the Philippines after the US and the Philippines signed their Mutual Defence Treaty in August 1951. 5) Vietnamese and regional media speculate that, as a result of the missing Malaysia Airlines flight MH370, and under the pretext of needing to cope with similar situations in the future, China is reinforcing and building infrastructure on islands, shoals and reefs in the South China Sea. What do you think about this move of China? ANSWER: Certainly Chinese state media and academic commentators have called for China to establish facilities and airfields in the South China Sea to support future Search and Rescue (SAR) operations. There is no sign that China has begun constructing any such features in the Spratly archipelago. The islands and features that China now occupies are too small to support SAR vessels and aircraft. China could use the SAR pretext to extend its facilities on Woody Island, and to upgrade weather monitoring and communications systems in the Spratly islands. 6) What recommendations would you, as a Vietnam specialist, give to Vietnam and its press/media about reporting news regarding the Philippines’ lawsuit against China at the Arbitral Tribunal? What important issues and themes should be stressed? ANSWER: When asked, Vietnamese officials should continue to do as they are doing now, and that is to say Vietnam supports the resolution of territorial disputes without coercion and intimidation and by peaceful means including international law by the parties directly concerned. Vietnam respects the right of the Philippines to take whatever legal action it deems in its national interest to resolve its territorial disputes in the South China Sea peacefully. The Vietnamese media should point out, as the Philippines argues, that the Philippines exhausted nearly all other remedies to resolve its territorial dispute with China. The Philippines concluded that further negotiations with China were going nowhere. In filing its claim for an Arbitral Tribunal the Philippines gave due notification to China to join the proceeding and put its case before arbitrators. China declined to participate.
3 If the Arbitral Tribunal proceeds with the case, individual Vietnamese legal specialists could offer to assist the Philippines as expert witnesses. This is permitted under the rules of procedure. The Vietnamese media should note that the Vietnamese government has reserved the right to participate in the proceedings of the Arbitral Tribunal if it feels that Vietnamese national interests are at stake. The Vietnamese media should present the actions by the Philippines as responsible and fully in accord with the UN Charter and international law. At the same time, the Vietnamese media should point out that China should be more transparent and offer specific information to support its “historical rights” and “indisputable sovereignty” claims in the South China Sea. If China did so, Vietnamese scholars should be called on to examine Chinese claims against documents and historical evidence held in Vietnam.
Suggested citation: Carlyle A. Thayer, “The Philippines Case to the Arbitral Tribunal: What Comes Next?,” Thayer Consultancy Background Brief, March 29, 2014. All background briefs are posted on Scribd.com (search for Thayer). To remove yourself from the mailing list type UNSUBSCRIBE in the Subject heading and hit the Reply key. Thayer Consultancy provides political analysis of current regional security issues and other research support to selected clients. Thayer Consultancy was officially registered as a small business in Australia in 2002.