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Do great powers comply with arbitral rulings?

/ 05:04 AM January 16, 2020

Will China, a nuclear-armed state and the superpower in the Asian region, comply with an arbitral ruling adverse to it and in favor of a militarily weak, non-nuclear armed state like the Philippines?

When the ruling on the South China Sea Arbitration came out on July 12, 2016, Harvard professor Graham Allison wrote an opinion article in the Singapore Straits Times claiming that great powers do not comply with rulings of arbitral tribunals. What is the historical record of nuclear-armed states complying with rulings of arbitral tribunals adverse to them and in favor of militarily weak, non-nuclear armed states?

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In 1986, the International Court of Justice (ICJ) ruled that the US violated the territorial integrity of Nicaragua when the US mined the harbors of Nicaragua and supplied arms to the contra rebels. The nuclear-armed US, the greatest economic and military power on earth, refused to recognize the jurisdiction of the ICJ, refused to participate in the proceedings, and refused when ordered by the ICJ to negotiate the amount of damages to be paid to Nicaragua, a militarily weak state with no nuclear arms.

While the proceedings on the amount of damages were pending, the US and Nicaragua arrived at an understanding: The US would provide Nicaragua about US$500 million in economic aid and resume diplomatic and economic relations provided Nicaragua would withdraw the ICJ case. In 1992, Nicaragua withdrew the ICJ case after repealing its law that mandated the recovery of damages from the US. Thus, the dispute between Nicaragua and the US was settled six years after the ICJ ruling. There was compliance by the US because Nicaragua was satisfied with the final settlement that ended the dispute.

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In 2013, the Russian coast guard seized the Arctic Sunrise vessel and its crew who were charged with hooliganism for climbing a Russian oil drilling platform. The International Tribunal for the Law of the Sea (Itlos), upon application by the flag state the Netherlands, ordered Russia to release the crew and the vessel. Russia refused to recognize the jurisdiction of the Itlos and refused to comply with the Itlos order.

However, one month after the Itlos order, Russian President Vladimir Putin pardoned the Arctic Sunrise crew and released the vessel after the Russian Parliament amended Russia’s amnesty law to include hooliganism as a crime that could be pardoned. Putin said that he pardoned the crew and released the vessel under Russian law, and not because of the Itlos order.

In 2015, an Unclos tribunal assessed the damages suffered by the Arctic Sunrise vessel at 5.4 million euros, ordering Russia to pay the amount to the Netherlands. Last May 2019, Russia and the Netherlands reached a settlement to terminate the dispute, with Russia agreeing to pay half of the damages awarded by the tribunal. Thus, Russia, a powerful state with the largest arsenal of nuclear weapons in the world, complied with an arbitral award to the satisfaction of the Netherlands, a non-nuclear armed state.

In 2014, an Unclos tribunal awarded Bangladesh four-fifths of the 25,602 square kilometers of waters in dispute with India in the Bay of Bengal. India, a nuclear-armed state, immediately announced that it would comply with the ruling that favored Bangladesh, a militarily weak, non-nuclear armed state.

In 2015, an Unclos tribunal ruled that the United Kingdom breached its obligation under Unclos for failing to consult Mauritius when the UK declared a marine protected area around the Chagos Archipelago, which would eventually be returned to Mauritius by the UK, the former colonial ruler in Mauritius. Soon after the issuance of the arbitral ruling, the UK, a nuclear-armed state, declared that it would comply with the ruling, and had already informed Mauritius, a non-nuclear armed state, of the UK’s readiness to commence consultations pursuant to the ruling.

There is one nuclear-armed state that still refuses to comply with an adverse ruling—China. Will China, a nuclear-armed state and a rising global power, ever comply with the ruling in the South China Sea Arbitration?

If China refuses to comply, it means that either China does not mind being a permanent rogue state in the community of civilized nations, or there is an epic failure in Philippine foreign policy, or both.

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(Next week: Why great powers eventually comply with arbitral rulings.)

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TAGS: Antonio t. carpio, arbitral ruling, Crosscurrents, Maritime Dispute, PH-China relations, West Philippne Sea
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