Captain Sean R. Liedman currently serves as the U.S. Navy Fellow at the Council on Foreign Relations. Previously, he was the commander of Patrol and Reconnaissance Wing Eleven operating the P-8A and P-3C maritime patrol and reconnaissance aircraft. He has twice served in the Air Warfare Division on the Chief of Naval Operation’s staff and also as the executive assistant to the deputy commander of U.S. Central Command. The conclusions and opinions expressed are his own and do not reflect the official position of the U.S. government.
Reuters reported on March 19 that the U.S. Navy had observed Chinese maritime survey activities around Scarborough Shoal that may be a precursor to reclamation activities similar to those executed by China on seven other maritime features in the Spratly Islands located more than three hundred and fifty nautical miles to the south. The U.S. response to China’s island building campaign in the Spratlys has been confined to calls to “halt the expansion and the militarization of occupied features” and maritime and aerial freedom of navigation operations (FONOPS) to preserve freedom of access to the high seas and international airspace. However, the case of Scarborough Shoal is different as an arbitration case remains ongoing, and the United States and its allies and partners in the region should be prepared to use a broader range of the tools of statecraft to prevent similar ecological destruction and occupation of Scarborough Shoal by the Chinese.
On the heels of the Chinese seizure of Mischief Reef in the Spratlys in 1995, a U.S. State Department press briefing outlined the elements of a South China Sea policy that remains in place today. The briefing stated that the United States:
- “strongly opposes the use or threat of force to resolve competing claims and urges all claimants to exercise restraint and to avoid destabilizing actions,”
- “has an abiding interest in the maintenance of peace and stability in the South China Sea,”
- has “a fundamental interest” in maintaining freedom of navigation in the South China Sea,
- “takes no position on the legal merits of the competing claims to sovereignty over the various islands, reefs, atolls, and cays in the South China Sea” and,
- …would “view with serious concern any maritime claim or restriction on maritime activity in the South China Sea that was not consistent with international law, including the 1982 United Nations Convention on the Law of the Sea (UNCLOS).”
Therein lies the policy conundrum for the United States; while it continues to assert that it takes no position on the legal merits of any of the multitude of sovereignty disputes in the South China Sea, it also opposes the use or threat of force to resolve competing claims and any restrictions on maritime activity that are not consistent with UNCLOS. The Chinese seized Scarborough Shoal from the Philippines in June 2012 in a strategic move that the Wall Street Journal labeled “Putinesque.” China employed a hybrid strategy of diplomatic ruse backed up by paramilitary forces that included the use of fishing vessels, China Marine Surveillance vessels, and People’s Liberation Army Navy (PLAN) vessels to coerce the Filipinos into departing the waters surrounding Scarborough Shoal. The Chinese have exerted de facto sovereign control over Scarborough Shoal ever since through the constant presence of China Marine Surveillance vessels that have resorted to ramming and using water cannons to eject any non-Chinese registered fishing vessels from the area. While no shots have been fired, Chinese behavior during the seizure and subsequent patrolling of Scarborough Shoal clearly violated the first and fifth U.S. policy principles listed above.
In 2013, the Philippines initiated arbitral proceedings at the International Tribunal of the Law of the Sea’s Permanent Court of Arbitration (PCA) at The Hague to request rulings on fifteen submissions regarding UNCLOS disputes in the South China Sea. The PCA ruled in October 2015 that it has jurisdiction over seven of the fifteen submissions, including three key submissions regarding Scarborough Shoal:
- “China has unlawfully prevented Philippine fishermen from pursuing their livelihoods by interfering with traditional fishing activities at Scarborough Shoal”;
- “China has violated its obligations under the Convention to protect and preserve the marine environment at Scarborough Shoal and Second Thomas Shoal”;
- “China has breached its obligations under the Convention by operating its law enforcement vessels in a dangerous manner causing serious risk of collision to Philippine vessels navigating in the vicinity of Scarborough Shoal”;
A PCA ruling is expected on those three submissions sometime during the summer of 2016. Allowing China to dredge, reclaim, and occupy Scarborough Shoal prior to the PCA ruling would completely undermine the first, second, and fifth policy principles outlined above and the broader U.S. principles of adherence to the rule of law and the peaceful resolution of disputes through international mechanisms. In December 2014, China stated its policy position of “three no’s” in regards to the Philippines’ PCA filing: no acceptance of the filing, no participation in the proceedings, and no implementation of any findings. However, the PCA found that China’s non-participation does not deprive the tribunal of jurisdiction in accordance with Article 9 of Annex VII to UNCLOS which provides that: “Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.”
Finally, Scarborough Shoal has not been developed or reclaimed to date and remains a pristine part of the South China Sea ecosystem. China’s reclamation activities on the seven maritime features in the Spratlys have been labeled the “quickest rate of permanent loss of coral reef area in human history” with widespread environmental damage that is “irrecoverable and irreplaceable.” What is at stake at Scarborough Shoal is not simply preservation of an important regional ecosystem; the ecological destruction of Scarborough Shoal would constitute a gross violation of Article 145 of UNCLOS, which addresses the protection and conservation of the marine environment, and would further enable bad behavior around the globe with regard to international marine environmental protection law.
To date, the Chinese have incurred little strategic cost from their reclamation and occupation campaign in the South China Sea as the United States has sought to secure and preserve Chinese cooperation on broader strategic interests such as climate change, the desired denuclearization of Iran and North Korea, cyber theft, and fair trade and monetary policies. It is now time for the United States and regional allies like Japan, Australia, and South Korea to accept more friction in their relationship with China and raise the cost/risk calculus for further Chinese expansion and occupation in the South China Sea, including Scarborough Shoal.
A strategy to prevent reclamation activities on Scarborough Shoal should begin with public diplomacy pronouncements that the United States will not permit the wanton destruction of Scarborough Shoal, backed up by private diplomatic communications that there could be serious consequences such as revoking the invitation for the Chinese to participate in RIMPAC 2016 and other regional security cooperation fora and exercises. If China fails to heed those diplomatic warnings and commences reclamation activities on Scarborough Shoal, there are a variety of non-lethal, covert means that the United States and its allies could utilize to disable the dredgers that the Chinese have employed in the Spratlys, including fouling the “cutter suction” mechanism or disrupting the continuity of the “floating sediment pipe” that delivers the dredged ocean bottom and coral fragments ashore.
Failing to prevent the destruction and Chinese occupation of Scarborough Shoal would generate further irreversible environmental damage in the South China Sea – and more importantly, further irreversible damage to the principles of international law. Finally, it would further consolidate the Chinese annexation and occupation of the maritime features in the South China Sea, which would be essentially irreversible in any scenario short of a major regional conflict.