IMMEDIATELY after the arbitral decision on Philippines v. China was released on July 12, 2016, former US Senator and US Secretary of Defense Chuck Hagel, was interviewed. He said that by signing the UNConvention on the Law of the Sea (Unclos), China gave up its historical rights, and the arbitral decision “gives all those countries in that part of the world the high ground here and has isolated China” (CNBC, July 12, 2016). What was said and who said it aroused my interest.
Who is Chuck Hagel? Hagel served as Obama’s defense secretary from 2013 to 2015. He played a key role in one of the foreign policy legacies of the Obama administration: the pivot to Asia. As defense secretary, Hagel spent a lot of time in Asia and negotiated access arrangements.
What was said is nothing short of fascinating: A former US defense secretary citing Unclos and backing the validity of The Hague tribunal decision. The US is not a signatory to the Unclos and it’s quite doubtful that, if its sea interests are at stake, it will ever subject itself to a compulsory, unilaterally sought arbitration proceedings like the one that the Philippines initiated against China.
Hagel’s pronouncement seemed to indicate that the US is willing to abandon its 1970s position on the South China Sea territorial disputes.
In the 1970s, a memorandum from the presidential assistant for national security affairs (Scowcroft) to President Ford, stated that the Philippines and other claimants, except China, “have militarily occupied one or more of the Spratly Islands.” Just like the Soviet Union, “the United States is not involved,” it said, and declared that, “the US has no claims and we support nobody else’s claims.” Reacting to suggestions that the US deploy troops during the naval battle between China and South Vietnam for the Paracels and the Spratly archipelago, then US Secretary of State Henry Kissinger didn’t approve of military intervention in the disputes. Perhaps because of his intimate knowledge of China, he also didn’t regard “the Chinese claims to the Paracels and Spratlys as evidence that Peking wished to dominate the region.”
The Scowcroft memorandum also revealed that President Ferdinand Marcos wasn’t too happy with the neutral stance of the Americans. Marcos used the Reed Bank (or Recto Bank), one of the disputed features in the Spratlys and one of the central features covered by the Philippines vs China arbitration case, as a bargaining chip during the renegotiation of the US bases in the Philippines in the late 1970s. At that time, along with other Manila businessmen, Marcos’ friend and in-law, Herminio Disini, had invested in oil exploration in the Reed Bank, conducted with the Swedish and Americans.
Marcos wanted the Americans to include the Reed Bank under the 1951 Mutual Defense Treaty coverage. It was one of the two issues that stalemated the military base negotiations — the other one was “the amount of military assistance [the US]will offer in exchange for use of Philippine bases.” Marcos wanted from the Americans “a clear written statement of whether we will respond under the Mutual Defense Treaty if his forces are attacked while operating in the Reed Bank.”
As a way out of the negotiation stalemate, the US State and Defense departments recommended that the US “would consider Philippine units operating in the Reed Bank as covered by…treaty as long as their presence is consistent with the provisions of the Mutual Defense Treaty, particularly Article I regarding peaceful settlement of disputes and refraining from the threat or use of force.” This position gave the US some “flexibility.” It “neither expands nor contracts [the Defense Treaty]obligations; and allows [the US]to avoid the significant risks that both of the other options present.”
Several decades after, the Reed Bank is once again implicated in the disputes. And one of the key players in the Philippine move to file an arbitration case against China is connected to Philex Mining Corp., the company that obtained gas and oil exploration rights in the Reed Bank— former foreign affairs secretary, Albert del Rosario.
Under del Rosario, the Philippines strongly supported the rearmament of Japan. He also spearheaded and defended the Enhanced Defense Cooperation Agreement (EDCA) with the US, concluded in April 2014. It paved “the way for a new permanent American military presence across five bases that will support rotational deployments near the contested South China Sea”
Del Rosario accomplished what Marcos failed to achieve for the Reed Bank. The Hague tribunal declared the Reed Bank within the exclusive economic zone of the Philippines and found that “China had interfered with Philippine petroleum exploration at Reed Bank” and it concluded that “China had violated the Philippines’ sovereign rights with respect to its exclusive economic zone and continental shelf.” And this could give the US a legitimate reason to intervene militarily in case China continued this interference.