MANILA, Philippines (UPDATED) – Even if the Philippines wins its case against China, naysayers have doubts that the ruling of the Permanent Court of Arbitration would amount to anything. China has said it would ignore any adverse verdict. Besides, who would impose it?
Supreme Court Senior Associate Justice Antonio Carpio discussed with Rappler two international cases to show that China would be forced “one way or another” to comply with a ruling that he expects would favor the Philippines in the maritime dispute over the West Philippine Sea (South China Sea).
He cited the 1986 case of Nicaragua v. United States of America that was filed before the International Court of Justice (ICJ), and the 2013 case Kingdom of Netherlands v. Russian Federation before the International Tribunal for the Law of the Sea (ITLOS).
Carpio also cited a 2008 study by Filipino Aloysius Llamzon showing “big compliance” with the decisions of international courts.
“It’s a big compliance because there will be a reputational cost to the country that will not comply. Once the threshold is reached, when they feel it will cost them more not to comply than to comply, then they will comply,” Carpio said in a Rappler Talk interview.
In Nicaragua v. United States of America, compliance was not immediate. But the US was eventually forced to pay.
In the case of Russia, it was quicker to comply in spite of its initial refusal to recognize the court’s jurisdiction.
Carpio said the Philippines’ case against China may take 10 years. “It could take maybe 10 years. But we should steel ourselves that this will be a long struggle,” he said.
China, however, argued in a position paper that the Permanent Court of Arbitration has no right to hear the case.
The Philippines wants the tribunal to uphold the United Nations Convention on the Law of the Sea that allots countries 200 nautical miles of exclusive economic zone. The case was prompted by China’s practical occupation of Scarborough Shoal, located about 150 nautical miles off the coast of Zambales province.
Nicaragua’s territorial integrity
Nicaragua v. United States of America is about the military and paramilitary activites of the US in and against Nicaragua at the height of the country’s civil war in the late 1970s to early 1980s. The US, for example, installed explosive devices in various Nicaraguan ports, hurting many people and damaging facilities. The US also supplied arms to the Contras, a counter-revolutionary group that was set up to fight the leftist Sandinista regime.
The ICJ eventually declared that the US violated the territorial intergrity of Nicaragua and awarded it US$370.2 million in damages. But like China, the US refused to acknowledge that the court had jurisdiction over the case and initially ignored its ruling.
Nicaragua went to the UN Security Council to ask the body to enforce the ruling, but the US – which is a permanent member – vetoed it.
Nicaragua then went to the UN General Assembly to sponsor a resolution that the US must comply with international law and the ruling of the International Court of Justice.
It was put to a vote and Nicaragua won.
Still, the US remained defiant with the support of a big minority.
Carpio said that every year Nicaragua, sponsored the same resolution and every year it won the vote. One by one the countries supporting the US withdrew until there was only one country left: Israel, according to Carpio.
“It was costing the US tremendously in terms of reputation. It claims to be the exponent, the Number 1 advocate of the Rule of Law and yet it was glaringly in violation of international law. The world was telling the US, ‘You violated international law,’” Carpio said.
The US did not pay Nicaragua the $370.2 million that the court said it should pay.
But in the end, Carpio said the US gave Nicaragua half a billion dollars in economic aid in the first two years of the presidency of Victoria Chamorro.
In what was apparently a result of a compromise, Carpio said Chamorro asked Nicaragua’s parliament to repeal a law that required the US to pay damages.
“Eventually, there was compliance in a way that saved the face of the US. The US paid and Nicaragua was happy,” said Carpio.
The other case is new: Kingdom of Netherlands v Russian Federation, or the Arctic Sunrise case.
Russians seized a Greenpeace vessel and detained its crew after the environmental activists climbed an oil rig of Russia in protest of its oil drilling in the Arctic.
The Kingdom of Netherlands, where the Greenpeace headquarters is located, sued Russia for the detention of the crew and the vessel.
Russia also said ITLOS had no jurisdiction, but ITLOS still proceeded with the case.
“ITLOS said we have jurisdiction. It gave a provisional measure: ‘We order you to release the vessel and the crew.’ Russia said we will not comply but the uproar in the world community was very strong,” said Carpio.
“Within one year, the parliament of Russia passed a law authorizing President Vladimir Putin to pardon the crew and to release the vessel, and that’s exactly what Putin did. The crew and the vessel were released. Eventually there was compliance,” said Carpio. – Rappler.com