WPS stalemate and the Nuremberg Principle

We have a ready-made case against China in the West Philippine Sea (WPS) dispute, by applying the Nuremberg Principle (NP) which is now a part of international law. We do not have to wait for a hostile act of the Chinese Coast Guard to invoke the NP.

The elements of the NP are as follows:

a) crimes against peace (planning and implementing wars of aggression); b) crimes against humanity (genocide, Holocaust, enslavement, etc); c) war crimes (violations of the laws of war); and d) conspiracy by implementing the foregoing offenses. These charges used by the International Military Tribunal (IMT) in Nuremberg against the Nazi war criminals in 1946 were affirmed by UN Resolution 95 (I) in 1946 and referred to the International Law Commission (ILC). The ILC in return declared the NP as part of customary international law.

When the Hague Tribunal ruled in our favor in the WPS dispute, we should have served a notice to China that, given the ruling, it should lift the blockade of Ayungin Shoal and other parts of the WPS, reminding Beijing that its actions were in violation of international law.

If China refused to do so, we could have elevated the issue to the UN General Assembly (UNGA). The initial petition would be to the Security Council, which would be aborted by a Chinese veto.

Upon favorable ruling by the UNGA, we could inform China that pursuant to the UN resolution, we will periodically send supplies to Ayungin Shoal and allow our fishermen to freely fish in the WPS. We shall provide escorts for our supply ships and our fishermen.

But we cannot on our own do that, given China’s military power. We have to engage in coalition-building and ask friendly powers to provide escorts for our supply vessels. In this regard, our diplomacy is fatally flawed. President Duterte’s rants about asking the United States to pay for maintaining the Visiting Forces Agreement takes us further away from recovering our domain in the WPS.

In this regard, China is already in violation of two of the four provisions of the NP, namely:

a) Crimes against peace, for encroaching on and blockading our domain in the WPS. This crime has two aspects: a) Acts of aggression, in the case of Austria and Czechoslovakia in World War II, and b) Wars of aggression in the case of Poland, Norway, etc. In case (a) there is no use of force, in case (b) there is actual combat. Nonetheless, the IMT ruled that both are crimes against peace. Thus, we do not have to wait for hostile action by the Chinese Coast Guard before we act. China’s actions in the WPS to date are already crimes against peace based on the IMT ruling on Austria and Czechoslovakia. In both instances, Hitler had threatened to use force but did not use it. In the South China Sea case, the Chinese went further; it authorized its Coast Guard to use force against other claimants.

b) Conspiracy to violate the above provision of the NP. The construction of artificial islands and militarization of the WPS required planning, and are indubitable evidence of premeditation by Chinese officials. The Department of Foreign Affairs claimed it had sent 60 complaints to the Chinese on the WPS dispute. But the complaints that count—lifting the Chinese blockade of the WPS and applying the NP—have not been done. Likewise, elevating the complaint to the UN is long overdue.

After getting a favorable UN resolution, we can ask the United States and other countries for assistance in breaking the Chinese blockade by escorting our supply ships. If the United States and other countries support us, the blockade will end; it is unlikely that China will face the combined might of all the major powers. If, on the other hand, the United States and other countries decline, it will be the end of Pax Americana. A superpower must be able to navigate the seven seas freely to project its power in all parts of the world. Thus, it is unlikely the United States will abandon its superpower status by default.

What we lack is the willpower to elevate this case to the UN.

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Hermenegildo C. Cruz is a retired career ambassador who served in this capacity in Chile, Bolivia, the USSR, and the UN. He was a member of the Asean Group that successfully petitioned the UNGA to declare the Vietnamese invasion of Kampuchea in the 1980s as a violation of the UN Charter and international law. He holds a master of arts degree in law and diplomacy from the Fletcher School of Law and Diplomacy in Massachusetts, USA.