Why great powers comply with arbitral rulings

Thucydides, the fifth century B.C. historian of the Peloponnesian War, famously wrote that “the strong do what they have the power to do and the weak accept what they have to accept.” Some modern-day foreign policy and security experts still echo this, asserting that in interstate relations, “might makes right.”

More than 2,400 years have passed since Thucydides taught the world about the lessons from the Peloponnesian War. That world had no international law that barred or criminalized a state’s aggressions against other states.The world has vastly changed since then. Before the adoption of the 1945 United Nations Charter, war was recognized as a valid means of acquiring territory. A state could annex for any reason the territory of a neighboring state by invading and defeating its neighboring state in a war.

With the adoption of the UN Charter, acts of aggression have been outlawed. The use or threat of force in settling territorial or maritime disputes is now a violation of international law. Such disputes must be settled through peaceful means, either through negotiation, mediation or arbitration.

States that commit acts of aggression can be sanctioned by the UN Security Council. If the Security Council does not act because the erring state has a veto power in the Security Council, the individual leaders of the erring state, even if the state is not a member of the International Criminal Court, may still be prosecuted before the ICC if the act of aggression also constitutes a war crime or a crime against humanity committed on the territory of a member state.

The world community has also adopted conventions that prescribe mandatory norms in international relations among states. The 1982 UN Convention on the Law of the Sea regulates the uses of the oceans and seas, and provides a compulsory dispute mechanism binding on member states. The 1995 World Trade Organization (WTO) regulates trade among member states, and provides for a compulsory dispute settlement mechanism. Incidentally, China has complied with all adverse WTO rulings, 12 to date, in a manner acceptable to the winning states.

Unlike in the time of Thucydides, there is today a powerful moral force called world opinion. In international relations, the locus of world opinion is the UN General Assembly. This is the place where the civilized nations of the world formally express their opinions on world affairs.When the US refused to comply with the adverse ruling of the International Court of Justice (ICJ), Nicaragua sponsored in 1986 a resolution in the UN General Assembly demanding that the US comply with the ICJ ruling. The resolution passed overwhelmingly, 94 to 3. The following year, Nicaragua again sponsored the same resolution, and this time, only Israel joined the US against the resolution.

The US suffered a huge reputational cost as the US appeared like a rogue state. World opinion eventually forced the US to strike a face-saving compromise with Nicaragua that effectively complied with the ruling.

In contrast, when the Philippines won the South China Arbitration on July 12, 2016, the Duterte administration decided to put aside the ruling in exchange for promised loans and investments from China, which today remain largely unfulfilled. The Philippines did not sponsor any resolution in the UN General Assembly demanding that China comply with the ruling.

The Philippines did not galvanize world opinion even as the European Union, the United States, Canada, Japan and Australia had signaled before the ruling came out that China and the Philippines must comply with whatever ruling the arbitral tribunal would issue. Other coastal states that feared their militarily stronger neighboring states might emulate China and seize their exclusive economic zones would have supported the Philippine position.

Fortunately, our Asean neighbors stepped forward where we feared to tread. Vietnamese coast guard vessels had eyeball-to-eyeball standoffs with Chinese coast guard vessels that escorted Chinese survey ships within the Vietnamese exclusive economic zone. The Indonesians ridiculed Chinese claims to fishing rights within the Indonesian exclusive economic zone, renaming their waters in the Natunas as the North Natuna Sea, citing as basis the arbitral ruling that invalidated China’s nine-dash line. Malaysia filed an extended continental shelf claim to waters deep within China’s nine-dash line.We must thank our brave Asean neighbors for keeping alive the arbitral ruling in the consciousness of the peoples of the world.

acarpio@inquirer.com.ph