Why did US diplomat say Scarborough Shoal belonged to the Philippines?

Amid South China Sea tensions, Nicholas Burns’ incorrect assertion that the disputed Scarborough Shoal and Second Thomas Shoal were Philippine territory may reflect US bias at work
This highlights a hardening US stance against China and Beijing’s communication challenges

Zhihua Zheng

Published: 5:30am, 30 Mar 2024

Why you can trust SCMP

Corrected [11:24am, 31 Mar, 2024]

[11:24am, 31 Mar, 2024]
An earlier version of the article stated that the Permanent Court of Arbitration ruled on the 2016 South China Sea case. But, more accurately, it was an ad hoc tribunal established under the UN Convention on the Law of the Sea that made the ruling. The Permanent Court of Arbitration served as the Registry in this arbitration. This article has been updated to reflect this.

We are part of the Trust Project What is it?

Earlier this month, US ambassador to China Nicholas Burns discussed US-China relations at a seminar hosted by the East-West Centre in Hawaii. Startlingly, he claimed that Second Thomas Shoal and Scarborough Shoal were “the sovereign territory of the Philippines”.

His baffling remark was in response to questions by East-West Centre president Suzanne Vares-Lum on South China Sea tensions between China and the Philippines. Burns said the US was “very concerned” about China’s “coercive pressure”, and referred to the “tense stand-offs” at “Second Thomas Shoal and also in Scarborough Shoal”.

He added: “The International Court of Justice, which is the relevant legal body, ruled in July 2016 decisively in favour of the Philippines. And so that that territory is the sovereign territory of the Philippines and that China’s legal claim to it has no basis in international law. All the rest of the world understands that and recognises that this is sovereign Filipino territory.”

This is not only counterfactual but also diverges from the official US position, and misrepresents the relevant international laws, including the UN Convention on the Law of the Sea (Unclos).

First, it was not the International Court of Justice but an arbitral tribunal established under Annex VII to Unclos that made the 2016 ruling. And the ruling neither mentioned nor confirmed Scarborough Shoal and Second Thomas Shoal as Philippine territory.

As Unclos “does not address the sovereignty of states over land territory”, the tribunal said in the ruling, it has “not been asked to, and does not purport to, make any ruling as to which state enjoys sovereignty over any land territory in the South China Sea, in particular with respect to the disputes concerning sovereignty over the Spratly Islands or Scarborough Shoal”.

The ruling declared that Scarborough Shoal was a rock that cannot sustain human habitation or its own economic life and, accordingly, has 12 nautical miles of territorial sea but no exclusive economic zone or continental shelf. The ruling also found that Second Thomas Shoal was a low-tide elevation forming part of the Philippine exclusive economic zone and continental shelf.

But that’s it. For Burns to say they are Philippine territory is wrong. This is especially as the US government has refused to take a position on the sovereignty of Scarborough Shoal.

Over the years, the US has repeatedly affirmed its position that it “takes no position” over competing claims to sovereignty over disputed land features in the South China Sea, including in a report to Congress last month. It has also said that this was not a matter governed by Unclos.

Third, Burns’ statement that “all the rest of the world understands that and recognises that this is sovereign Philippine territory” is even more contrary to the facts and the official US position.

While some countries may oppose China’s claims, most – like the US – take no position on sovereignty disputes in the South China Sea, including over continental shelf claims. These include Britain, France and Germany, which in their note verbale in 2020 to the UN, said they “take no position” over the “disputed territorial sovereignty to naturally formed land features and to areas of the continental shelf in the South China Sea”.

15:04

Why is the Philippines aligning itself with the US after years of close China ties under Duterte

It is puzzling why Burns made such mistakes. Is he ignorant, did he knowingly make the mistakes or was it a form of disinformation warfare? What are the implications? What are the warnings for China in particular?

The first possibility, because this may be one of Burns’ cognitive blind spots, is that his perception has been hijacked by political correctness. Yet it is well known that Burns is a seasoned career diplomat and former academic. He served for more than a decade as the Goodman Professor of the Practice of Diplomacy and International Relations at Harvard University’s Kennedy School of Government.

This may be a reflection of the anti-Chinese stereotypes of the US political elite, especially those who strongly oppose China’s maritime claims.

01:49

Chinese floating barrier blocks entrance to Philippine ships at South China Sea flashpoint

The second possibility is that this is part of US disinformation warfare. Faced with great power competition, the US may feel the need to deny, denigrate and stigmatise China’s claims.

Another possibility is that this is a preview of a new direction in US policy towards the South China Sea. This would be an escalation: from denying China’s maritime claims in the South China Sea to also denying its sovereignty claims over the islands and reefs there. Some American academics have suggested the US take a stance against Chinese territorial claims to enhance freedom of navigation for US ships and aircraft.

US, wary of China’s ambitions, still won’t join UN agreement on ocean rights

To some extent, this may reflect the popularity in the West of the notion that China is an aggressor. It may also be that the US political elite can only see China’s “policy motives” and “behaviours” through their stereotypes. They firmly believe only the information that conforms to the values and imaginations of the US; all else is false.

It also reflects the stalemate in US-China strategic maritime communication. Neither side is making an effort to understand the other, instead guessing at each other’s behaviour based on own assumptions.

This highlights China’s communication challenges. China may have to reflect on its South China Sea policy and improve its diplomacy to avoid being seen as always in the wrong.

It is crucial to focus on verifiable facts rather than over-politicised narratives from both China and the US, given strained relations. This will help prevent ethical coercion and rebuild understanding.

Zhihua Zheng is an associate professor and head of the East Asia Marine Policy Project at the Centre for Japanese Studies, Shanghai Jiao Tong University