Debunking Carpio: Why PH-China row is wishful thinking

On the 7th of July 2015, Carmela Fonbuena of Rappler published an article with this bold headline: “China, like US in old case, will comply with ruling — SC Justice.” It was meant to assure the Filipino public that the Philippine arbitration case against China will be a victory that the Philippines will actually enjoy — champagne for everybody! The Facebook reactions generated by that article were equally triumphalist. Chickens were already counted before they were hatched.

Fonbuena based her triumphalist article on Justice Antonio Carpio’s analysis of different events in international relations, including the 1986 Nicaragua v. United States case at the International Court of Justice (ICJ).  Recently, Rappler quoted Paul Reichler, the lead counsel of the Philippines against China, saying that the enforcement of the arbitration decision ”will depend on the conduct of other affected states and the international community in general.”

Justice Carpio’s views were sought to dispel “naysayers” who believe that the arbitration case wouldn’t “amount to anything.” On the other hand, Reichler is reassuring Filipinos that the decision can be enforced. I’m one of those naysayers. Justice Carpio’s analysis of what happened in Nicaragua is wrong. And Reichler’s statement is based on historical amnesia. His suggestions didn’t work in Nicaragua v. United States, why does he expect it would work now?

 

The real score behind Nicaragua v. the United States

The way law works in the international realm is not the same as how it operates within a country. For example, in general, trial in absentia is not an accepted judicial practice in most countries. In the arbitration case between the Republic of the Philippines and the People’s Republic of China, we are witnessing a case proceeding without the other party present in the court. But the crucial difference is the absence of a credible institution that would enforce the decisions of international courts. Negotiations between States on how to enact international decisions are inevitable. If not negotiations, hard power options such as sanctions and use of force would be the other means to ensure the compliance of the losing party.

Nonetheless, the UN Charter allows a party to a case being adjudicated by the International Court of Justice (ICJ) to ask the UN Security Council (UNSC) to give effect to the decision (Article 94, par. 2). However, the UNSC is not obliged to enforce it. And as Constanze Schulte notes in Compliance with Decisions of the International Court of Justice, ICJ cases referred to the UNSC are scant because “cases of defiance regularly involved a permanent member either on the applicant or the respondent side.”

One example of these cases is the 1986 ICJ case between Nicaragua and the United States: the Case Concerning the Military and Paramilitary Activities in and Against Nicaragua. It was about how the US violated Nicaragua’s sovereignty by intervening in its internal affairs by supporting the Contras against the Sandanistas. The ICJ ruled in favor of Nicaragua and ordered the US to pay reparations. The US didn’t participate in the merit phase of the case; withdrew from ICJ’s compulsory jurisdiction (until now the US, including three other members of the P5: China, Russia, and France, has not recognized the compulsory jurisdiction of the ICJ); vetoed all UNSC resolutions related to it; and ignored the UN General Assembly resolution urging the US to comply.

According to the Rappler article, the ICJ asked the United States to pay $370.2 million in reparations. The United States didn’t pay it; but according to Justice Carpio, the US eventually “complied” by providing Nicaragua “half a billion dollars in economic aid in the first two years of the presidency of Violeta Chamorro…there was compliance in a way that saved the face of the US. The US paid and Nicaragua was happy.” As a compromise, Justice Carpio said that “Chamorro asked Nicaragua’s parliament to repeal a law that required the US to pay damages.”

It is not true that the ICJ awarded Nicaragua a specific amount of reparation. Nicaragua asked the court $370.2 million, but the court didn’t award that amount. The court decided that “the form and amount of such reparation, failing agreement between the Parties, will be settled by the Court, and reserves for this purpose the subsequent procedure in the case.” That subsequent procedure didn’t happen because Nicaragua withdrew the case.

After Violeta Barrios de Chamorro succeeded Daniel Ortega as President in April 1990, a September 1990 New York Times article reported that the Bush administration was pressuring her “to abandon a judgment of as much as $17 billion that Nicaragua won against the United States at the International Court of Justice during the contra war.” The New York Times article also noted the following:

 ”The United States wants the matter dropped. That’s it, no discussion,” said one foreign diplomat in Managua.”

That message was delivered most clearly earlier this month, when Mrs. Chamorro’s chief of staff, Antonio Lacayo Oyanguren, visited the State Department for meetings in which the court case was at the top of his agenda.

 Mr. Lacayo, who has resisted intense American pressure on issues such as Mrs. Chamorro’s decision to permit Sandinista officers to retain key military posts, returned to Managua in a chastened mood.

  ”We are analyzing the suitability of establishing a commercial treaty between Nicaragua and the United States,” Mr. Lacayo said at a news conference upon his return to Managua, ”and within that framework, people in the United States Administration and Congress will find the I.C.J. suit difficult to understand. ”We must decide,” he added, ”whether we should insist on receiving an indemnity that the United States says it will never pay, or accept the friendship of a nation and people that want to look to the future.’

 Nicaragua caved in to US pressure. In September 1991, Nicaragua sent the ICJ a letter renouncing “all further right of action based on the case” and subsequently requested the court to discontinue the proceedings and remove the case from the list. It wasn’t because the United States already agreed to pay reparations but because Nicaragua and the United States “reached agreements aimed at enhancing Nicaragua’s economic, commercial and technical development…”

 

 

Contrary to what Justice Carpio wanted us to believe, these agreements aren’t reparations the US paid. Reparations entail a recognition of wrongdoing, in this case an admission from the United States that the ICJ judgment was right. That didn’t happen in this case. In fact, in a letter it sent to the ICJ, the US, while welcoming the decision of Nicaragua to discontinue the proceedings, reiterated its position that the ICJ “is without jurisdiction to entertain the dispute and that the Nicaraguan Application of April 9, 1984, is inadmissible.”

That the aid Nicaragua received isn’t reparation is further emphasized by the intention of Nicaraguan President Daniel Ortega to revive its claim for reparations against the United States in July 2011. A lawyer involved in the ICJ case said that it was no longer possible to do this because “the case is most likely closed forever.” Notice how this lawyer didn’t say that the case is already closed because the United States already complied with it. How could Justice Carpio miss this? Is this a case of ignorance or willful disregard of fact? Why didn’t Rappler fact check and balance what the honorable judge was saying?

In sum, Justice Carpio is wrong. Nicaragua’s legal victory was a hollow one. The United States didn’t comply with the ICJ decision. What the United States did was pressure Nicaragua to discontinue the proceedings in exchange of aid. The United States did not admit wrongdoing and maintained its position that the ICJ had no jurisdiction over the dispute and Nicaragua’s application was inadmissible. Sounds familiar? YES: They are the same arguments of China regarding the arbitral case filed by the Philippines.

 

The non-wishful thinking lessons of Nicaragua v. the United States

 Since he misinterpreted what happened, Justice Carpio has drawn the wrong lessons from Nicaragua v. United States. The real lesson of this case isn’t about the power of international courts to make superpowers comply but the inevitability of power trumping international courts. International relations isn’t a realm of legality in which sovereign States bow to the rule of law regardless of whether the law is in their interests or not, but a realm of power in which players balance their interests through political means, peacefully by negotiations or violently through the use of force.

I’d like to repeat what Antonio Lacayo Oyanguren, the Chief of Staff of Violeta Barrios de Chamorro, said about the options that confronted them when they decided to discontinue the ICJ proceedings:

“We must decide whether we should insist on receiving an indemnity that the United States says it will never pay, or accept the friendship of a nation and people that want to look to the future.”

Nicaragua chose the latter path. In the end, it recognized the futility of its case against the United States. It withdrew the case and opted to “accept the friendship of a nation and people that want to look to the future.” In the case of the Philippines vs China, the options are: 1) to keep on pursuing the decision of the arbitral court that China insists it will never honor; or 2) to accept the offer of China to settle the issue bilaterally and pursue a path of joint development.

Which option is the most reasonable one to take given the reality of international relations? Sober up.

 

See Related article: PHILIPPINES VS CHINA CASE PRIMER FOR NON-DUMMIES

 

About the author:

A transpinay based in The Hague, Sass Rogando Sasot is studying at Leiden University, pursuing an MA in International Relations, working on a thesis on how a systemic change led to the rivalry of the coastal States of the South China Sea. In 2013, Sass became the first Filipino to receive the ECHO Award, given annually to excellent migrant students in academic and higher professional education in The Netherlands. In 2014, she graduated magna cum laude at Leiden University College-The Hague, with a Combined Major in World Politics and Global Justice, minor in International Development, with courses on U.S. Foreign Policy and International Relations of China take at UCLA. She has at least 10 years of international experience and was academically trained by influential practitioners in international relations, which includes Jaap de Hoop Scheffer, the 11th Secretary-General of North Atlantic Treaty Organisation (NATO).