Breaking the South China Sea Stalemate
Jul 18 2016 (Manila Times) – I grew up in a remote small village of Catanduanes, an island-province on this side of the Pacific where we had no court of law nor even a village cell to detain those who disturbed the peace. By necessity, we were obliged to maintain a zero crime rate. But neighbors and spouses still quarreled, sometimes violently, and whenever this happened, the parties would come to my father, who had a reputation for being a just and honest man, to conciliate or arbitrate. He would talk to the parties, ask a few questions, and then advise them to overlook each other’s defects and compose their differences. Somehow it always worked.
I recall this particular detail in my early youth as I try to understand the arbitration case before the Permanent Court of Arbitration, at The Hague, between the Philippines and China on their dispute over certain marine features in the South China Sea (unilaterally renamed West Philippine Sea by the previous Aquino government). Our government had asked the court to arbitrate, and it has ruled in our favor, so most of us are ecstatic about it. But China has refused to be bound by the ruling, saying it never recognized the court’s jurisdiction nor the process itself.
Why is this a mess?
I cannot seem to understand why my late father’s simple way of arbitrating petty domestic quarrels never failed, while this expensive and elaborate international process has only produced a stalemate, a terrible mess. As a citizen, I join my countrymen in welcoming the ruling which, as far as they are concerned, puts our giant neighbor in a more manageable place, but as a just and honest man, I want to be sure we stand on solid ground and can, with a clear conscience, insist on China’s compliance with the verdict. I would like to be guided by Senior Associate Justice Antonio Carpio’s highly instructive discourses on the subject, but there are a few minor items we cannot afford to trifle with.
For starters, I don’t believe the Aquino government was candid enough about everything the public needed to know about the arbitration process. For one, contrary to what the public has been led to believe, the PCA is not a real court but a mere provider of dispute resolution services to the international community; an intergovernmental organization which began in 1899, but not an organ or institution of the United Nations, which was founded only in 1945. It is said to rent space at the Peace Palace, at The Hague, a building owned by the Carnegie Foundation, where the International Court of Justice is headquartered; but it has nothing whatsoever to do with the World Court.
What’s the real cost?
The government also never told the public how much the arbitration would cost the Filipino taxpayers. The Constitution provides that no money shall be paid out of the Treasury except in pursuance of an appropriation made by law, yet no appropriation has been disclosed for this particular purpose. One report says that on lawyer’s fees alone, the government has spent $30 million (or P1.4 billion). It was supposed to split the total cost of the entire process with the other party, but since the other party did not participate, then it must have absorbed the entire cost. How much then is it? Are any foreign donors involved?
On top of the large number of lawyers and experts the government sent to The Hague, it engaged the services of noted foreign lawyers led by the famous Harvard professor Paul Reichler, who represented Nicaragua in its celebrated case in the ICJ against the United States in the 1980s. There was understandable excitement about Reichler’s formidable skills which helped Nicaragua win its case against the US, for supporting the Contras in their rebellion against the Nicaraguan government and for mining Nicaragua’s harbors.
Nicaragua vs the US
But there was hardly any mention of the fact that the US refused to participate in the proceedings after the Court rejected its objection questioning the Court’s jurisdiction to hear the case, and refused to comply with the judgment embodied in resolutions before the UN Security Council and the General Assembly in 1986. The judgment commanded the US to pay actual compensation to the Nicaraguan government. Shouldn’t the public have been forewarned that like the US, China could simply ignore the arbitral ruling should it lose?
As recorded in Wikipedia, the World Court found the US in breach of its obligations under customary international law not to use force against another state, not to intervene in its affairs, not to violate its sovereignty, and to interrupt peaceful maritime commerce, and in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation signed between the two countries in Managua on Jan. 21, 1956.
But from 1982 to 1985, the US vetoed the Security Council resolution urging full and immediate compliance with the ICJ judgment; on Oct. 28, 1986, it imposed a final veto on the measure before the Security Council. France and the United Kingdom, two permanent SC members with veto powers, together with Thailand, abstained during the voting. On Nov. 3, the same resolution was brought to the UN General Assembly and approved with only the US, Israel and El Salvador voting against it. Still the US refused to pay the fine.
Then-US Permanent Representative to the UN Jean Kirkpatrick explained that the World Court was a “semi-legal, semi-judicial, semi-political body, which nations sometimes accept and sometimes not.” The common impression about superpowers elsewhere is that they cannot be bound by penalties and sanctions; they decide what international law is, and what it is not. The US never paid actual damages to Nicaragua; the burden was lifted from the shoulders of the US by action of the Violeta Chamorro government after the defeat of the Sandinista President Daniel Ortega in 1990. The US-supported government repealed the law requiring it to seek compensation from the US for its role in the Contra revolt, and in Sept. 1992, withdrew its court complaint against the US.
Another critical point not well-appreciated by the public is that although the Philippines was eager to submit to the arbitral process, China rejected it from the very beginning and refused to participate. Thus the arbitration proceeded with only one party present, and China’s side was never heard. Against the 7,000-page submission of the Philippine government, there is not a single page from China defending its position on the “nine-dash line.” I don’t believe that as a nation that subscribes to the rule of law and equity, we could adopt this as our new standard of fairness.
As a former senator, I had made my own modest contribution to the internationalization of this issue, when I thought it was the right thing to do. In some Inter-Parliamentary Union (IPU) Conferences, and the Asia Pacific Parliamentary Forums abroad, I had clashed with Chinese and Japanese delegates a few times on this issue. But I don’t believe it is fair to compel China to accept a ruling in a process whose validity it had rejected from the very beginning.
Quoting some studies, Carpio says that in many cases governments that had initially declared open defiance of an adverse ruling by an international tribunal eventually complied with it, in the end. We could hope that this would happen to China. But it does not seem a likely response to the chorus of voices from the US, Japan and European governments, calling on Beijing to comply with what it considers an international conspiracy. Now, if the parties to the dispute and the long line of kibitzers work together to ease the tension and create a better climate for diplomacy, bilateral negotiations between Manila and Beijing could hopefully achieve that which the PAC ruling could not.
This is my hope. As we finally ended the standoff on Scarborough Shoal, we must now break the new stalemate.
FVR as special envoy
President DU30’s choice of former President Fidel V. Ramos as special envoy to the Xi Jinping government could be an excellent opening move. FVR has superb personal relations with the leaders of China and Taiwan, which for the first time since 1949 have found common cause against the PAC ruling. While Beijing raged in the media, Taiwan sent a warship to Itu Aba (or Taiping) in the Spratlys, as a reflex reaction to the PAC’s attempt to redefine the inhabited island, with at least 11 springs of fresh water, as a “rock.”
FVR’s father, the late former Foreign Secretary Narciso Ramos, was dean of the diplomatic corps in Taiwan for many years until the Philippines cut off relations with the island-republic when it recognized the People’s Republic of China under the “one-China” policy in 1975. At the same time, having been educated at West Point, fought in Korea and led the Philippines’ civic action group in Vietnam side by side with the Americans, Ramos is seen by many as someone who will not hurt the Americans in any way just to please Beijing.
Ramos is the oldest of the four surviving former Filipino Presidents. As he engages with a government, culture and civilization that put a high premium on wisdom and age, he could probably use his to full advantage.
This story was originally published by The Manila Times, Philippines