I REALLY hope the $30 million (P1.4 billion) I was informed we, taxpayers, spent for the legal fees and expenses of the eight top-notch international lawyers and their staff who prepared our case against China in the Permanent Court of Arbitration (PCA) turn out to be well spent.
Not only did they manage to get the PAC to redefine the standard meaning of “arbitration,” which for centuries had been defined as procedure in which two parties agree to a third party to settle their dispute. Now, it seems, “arbitration” can be a unilateral arbitration.
Now we also have succinct propaganda kit to try to convince the world to kick China’s ass for its bullying in the South China Sea. The US Central Intelligence Agency or its State Department should reimburse us the P1.4 billion—the suit is a big blow to China’s clout in the Spratlys, where the Americans have been pulling their hair how they could intervene since they don’t have claims in the area, and they even haven’t ratified the UNCLOS.
There’s one hitch though, which I bet the very clever lawyers the government hired weren’t eager to tell their clients. The arbitral court’s decision is certainly a blow to China’s image, which the Court in effect portrayed as a bully in the South China Sea that even drives away lowly fishermen from international waters.
The hitch is that so far, superpowers normally ignore rulings not only of the Arbitration Court, but even of the International Court of Justice, even with a resolution of the UN demanding that they comply with decisions of such international bodies.
“Superpower” here is defined as the four permanent members of the United Nations Security Council, the only UN body with the authority to issue binding resolutions to member states, especially resolutions for going to war. These four, each with veto powers over any of the body’s resolution are: US, Russia, France, United Kingdom, and—since 1971—the People’s Republic of China.
I’d have to have to include long footnotes for this column to convince you, dear incredulous reader, that superpowers routinely have ignored PCA decisions, which the world would later forget. So better just trust the following July 11 article in The Diplomat by a respected academic, Graham Allison, now director of the Harvard Kennedy School’s Belfer Center for Science and International Affairs and former dean of Harvard’s John F. Kennedy School of Government.
The article’s title was “Of Course China, Like All Great Powers, Will Ignore an International Legal Verdict,” with the lede, “In ignoring an upcoming verdict on the South China Sea, Beijing is following well-established precedent by great powers.”
Article starts as follows:
From the day the Philippines went to court, China has argued that the PCA has no legitimate jurisdiction on this issue since it concerns “sovereignty”—which the text of the Law of the Sea treaty explicitly prohibits tribunals from addressing. When the Court rejected China’s objection, Beijing refused to participate in its hearings and made it clear that it will ignore the PCA’s ruling. The United States and others have criticized Beijing for taking this stance. But again, if we ask how other permanent members of the Security Council have acted in similar circumstances, the answer will not be one we like.
When the Netherlands sued Russia after the latter’s navy boarded and detained the crew of a Dutch vessel in waters off of the Russian coast in 2013, Moscow asserted that the court had no jurisdiction in the matter and refused to participate in the hearings. It also ignored a tribunal’s order that the crew be released while the dispute was being resolved. After the PCA ruled that Russia had violated the Law of the Sea and ordered Moscow to pay the Netherlands compensation, Russia refused.
Anticipating the Court’s ruling in the case brought by the Philippines, UK Prime Minister David Cameron proclaimed: “We want to encourage China to be part of that rules-based world. We want to encourage everyone to abide by these adjudications.” Perhaps he had forgotten that just last year the PCA ruled that the UK had violated the Law of the Sea by unilaterally establishing a Marine Protected Area in the Chagos Islands. The British government disregarded the ruling, and the Marine Protected Area remains in place today.
The United States has never been sued under the Law of the Sea because—unlike China—Washington has not ratified the international agreement and is thus not bound by its rules. Expect Chinese commentators to emphasize this point in the mutual recriminations that will follow the Court’s announcement.
The closest analogue to the Philippine case involving the United States arose in the 1980s when Nicaragua sued Washington for mining its harbors. Like China, the United States argued that the International Court of Justice did not have the authority to hear Nicaragua’s case. When the court rejected that claim, the United States not only refused to participate in subsequent proceedings, but also denied the Court’s jurisdiction on any future case involving the United States, unless Washington explicitly made an exception and asked the Court to hear a case. If China followed that precedent, it could withdraw from the Law of the Sea Treaty altogether—joining the United States as one of the world’s only nations not party to the agreement.
In the Nicaragua case, when the Court found in favor of Nicaragua and ordered the United States to pay reparations, the US refused, and vetoed six UN Security Council resolutions ordering it to comply with the court’s ruling. US Ambassador to the UN Jeane Kirkpatrick aptly summed up Washington’s view of the matter when she dismissed the court as a “semi-legal, semi-juridical, semi-political body, which nations sometimes accept and sometimes don’t.”
Observing what permanent members of the Security Council do, as opposed to what they say, it is hard to disagree with realist’s claim that the PCA and its siblings in The Hague—the International Courts of Justice and the International Criminal Court—are only for small powers. Great powers do not recognize the jurisdiction of these courts—except in particular cases where they believe it is in their interest to do so. Thucydides’ summary of the Melian mantra—“the strong do as they will; the weak suffer as they must”—may exaggerate. But this week, when the Court finds against China, expect Beijing to do as great powers have traditionally done.