I REALLY hope the $30 million (P1.4 billion) I was informed we, taxpayers, spent for the legal fees and expenses of the eight top-notch international lawyers and their staff who prepared our case against China in the Permanent Court of Arbitration (PCA) turn out to be well spent.
Not only did they manage to get the PAC to redefine the standard meaning of “arbitration,” which for centuries had been defined as procedure in which two parties agree to a third party to settle their dispute. Now, it seems, “arbitration” can be a unilateral arbitration.
Now we also have succinct propaganda kit to try to convince the world to kick China’s ass for its bullying in the South China Sea. The US Central Intelligence Agency or its State Department should reimburse us the P1.4 billion—the suit is a big blow to China’s clout in the Spratlys, where the Americans have been pulling their hair how they could intervene since they don’t have claims in the area, and they even haven’t ratified the UNCLOS.
There’s one hitch though, which I bet the very clever lawyers the government hired weren’t eager to tell their clients. The arbitral court’s decision is certainly a blow to China’s image, which the Court in effect portrayed as a bully in the South China Sea that even drives away lowly fishermen from international waters.
The hitch is that so far, superpowers normally ignore rulings not only of the Arbitration Court, but even of the International Court of Justice, even with a resolution of the UN demanding that they comply with decisions of such international bodies.
“Superpower” here is defined as the four permanent members of the United Nations Security Council, the only UN body with the authority to issue binding resolutions to member states, especially resolutions for going to war. These four, each with veto powers over any of the body’s resolution are: US, Russia, France, United Kingdom, and—since 1971—the People’s Republic of China.
I’d have to have to include long footnotes for this column to convince you, dear incredulous reader, that superpowers routinely have ignored PCA decisions, which the world would later forget. So better just trust the following July 11 article in The Diplomat by a respected academic, Graham Allison, now director of the Harvard Kennedy School’s Belfer Center for Science and International Affairs and former dean of Harvard’s John F. Kennedy School of Government.
The article’s title was “Of Course China, Like All Great Powers, Will Ignore an International Legal Verdict,” with the lede, “In ignoring an upcoming verdict on the South China Sea, Beijing is following well-established precedent by great powers.”
Article starts as follows:
From the day the Philippines went to court, China has argued that the PCA has no legitimate jurisdiction on this issue since it concerns “sovereignty”—which the text of the Law of the Sea treaty explicitly prohibits tribunals from addressing. When the Court rejected China’s objection, Beijing refused to participate in its hearings and made it clear that it will ignore the PCA’s ruling. The United States and others have criticized Beijing for taking this stance. But again, if we ask how other permanent members of the Security Council have acted in similar circumstances, the answer will not be one we like.
When the Netherlands sued Russia after the latter’s navy boarded and detained the crew of a Dutch vessel in waters off of the Russian coast in 2013, Moscow asserted that the court had no jurisdiction in the matter and refused to participate in the hearings. It also ignored a tribunal’s order that the crew be released while the dispute was being resolved. After the PCA ruled that Russia had violated the Law of the Sea and ordered Moscow to pay the Netherlands compensation, Russia refused.
Anticipating the Court’s ruling in the case brought by the Philippines, UK Prime Minister David Cameron proclaimed: “We want to encourage China to be part of that rules-based world. We want to encourage everyone to abide by these adjudications.” Perhaps he had forgotten that just last year the PCA ruled that the UK had violated the Law of the Sea by unilaterally establishing a Marine Protected Area in the Chagos Islands. The British government disregarded the ruling, and the Marine Protected Area remains in place today.
The United States has never been sued under the Law of the Sea because—unlike China—Washington has not ratified the international agreement and is thus not bound by its rules. Expect Chinese commentators to emphasize this point in the mutual recriminations that will follow the Court’s announcement.
The closest analogue to the Philippine case involving the United States arose in the 1980s when Nicaragua sued Washington for mining its harbors. Like China, the United States argued that the International Court of Justice did not have the authority to hear Nicaragua’s case. When the court rejected that claim, the United States not only refused to participate in subsequent proceedings, but also denied the Court’s jurisdiction on any future case involving the United States, unless Washington explicitly made an exception and asked the Court to hear a case. If China followed that precedent, it could withdraw from the Law of the Sea Treaty altogether—joining the United States as one of the world’s only nations not party to the agreement.
In the Nicaragua case, when the Court found in favor of Nicaragua and ordered the United States to pay reparations, the US refused, and vetoed six UN Security Council resolutions ordering it to comply with the court’s ruling. US Ambassador to the UN Jeane Kirkpatrick aptly summed up Washington’s view of the matter when she dismissed the court as a “semi-legal, semi-juridical, semi-political body, which nations sometimes accept and sometimes don’t.”
Observing what permanent members of the Security Council do, as opposed to what they say, it is hard to disagree with realist’s claim that the PCA and its siblings in The Hague—the International Courts of Justice and the International Criminal Court—are only for small powers. Great powers do not recognize the jurisdiction of these courts—except in particular cases where they believe it is in their interest to do so. Thucydides’ summary of the Melian mantra—“the strong do as they will; the weak suffer as they must”—may exaggerate. But this week, when the Court finds against China, expect Beijing to do as great powers have traditionally done.
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The So-called Ruling made by Permanent Court of Arbitration (PCA)
Permanent Court of Arbitration (PCA) is Not a Court but An Arbitrator
The PCA is not a court, but rather an organizer of arbitral tribunals to resolve conflicts between member states, international organizations, or private parties.
It should not be confused with the International Court of Justice which is the primary judicial branch of the United Nations, while the PCA is not a UN agency.
The Permanent Court of Arbitration (PCA) is an intergovernmental organization located at The Hague in the Netherlands. The PCA is not a court, but rather an organiser of arbitral tribunals to resolve conflicts between member states, international organizations, or private parties. It should not be confused with the International Court of Justice which is the primary judicial branch of the United Nations, while the PCA is not a UN agency.
The PCA is a permanent bureaucracy that assists temporary tribunals to resolve disputes among states (and similar entities), intergovernmental organizations, or even private parties arising out of international agreements. The cases span a range of legal issues involving territorial and maritime boundaries, sovereignty, human rights, international investment, and international and regional trade.
Permanent Court of Arbitration (PCA) is neither a Court nor an International Tribunal
A court is a tribunal, often as governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, andadministrative matters in accordance with the rule of law.
The PCA is not a “court” in the conventional understanding of that term but an administrative organization with the object of having permanent and readily available means to serve as the registry for purposes of international arbitration and other related procedures, including commissions of enquiry and conciliation. In short, an Arbitrator only.
When Philippines first lodged an application re the South China Sea Dispute to PCA for arbitration and China refused to participate it was clear that there should be no more arbitration and Philippines should refer the case to a Court to proceed for hearing and, in this case the UN International Court of Justice in Hague.
PCA’s role is to conduct an arbitration only rather than a Ruling which is a Court’s authority, it follows that any ruling made by PCA becomes Null and Void.
PCA confess that they are not a Court in their official website (www.pca-cpa.org).
Speaking of “merely make a living” for non-phillipine fishermen in the currently dispute water, let’s see what philippine have done, check the link below:
or just google: “Philippine coast guard kills Taiwanese fisherman in disputed waters”, Of course, there are numerous other cases.
According to these facts, we don’t believe that Philippine will allow the fishermen of other parties to “merely make a living” in this water either. Who is actually “bully” in on the dispute water?
File a case against the the former government to pay back the P1.4billion to the treasury.
So the Philippine’s best option is through bilateral talks? It will be more gentlemanly to talk face to face. Philippine diplomats or leadership, however, should completely take out Uncle Sam in the picture when engaging China to a bilateral talk.
If China continues to ignore court verdict then it’s standing in the eyes of peace loving countries will be lowered.
Kung tinuloy lang sana Bilateral Talk noon, hindi na sana tayo nagbayad pa ng P1.4B. Si Pnoy aksaya talaga walang ginawang maganda sa Pinas. Bilateral talk ang ginagawa ng dating Pangulong GMA noon at ng iba pang Pangulo.
Yonkers, New York
15 July 2016
Okay, realistically conceding the point that “all superpowers ignore international verdicts, my question is why China–a “superpower”–has reacted to the Ruling of the PCA in favor of the Philippines like a badly wounded Bully, twisting in the wind and writhing obviously in both pain and fury?
My take is that China knows that in refusing to honor and obey the Ruling it risks being condemned by the world community of civilized nations as as a Pariah and even as a Rogue State.
That cannot be advantageous to China which is even now trying to be a major player on the world stage, with its planned ambitious “MARITIME SILK ROAD” and its recent establishment of the AIIB, among other major initiatives.
Dapat lang na lumaban tayo ng arbitration sa hague tribunal…wala naman tayung magagawa kung dakdakan o gera eh tsaka di naman pepedeng manahimik laang mawawalang tayu ng honor at dignidad nyan….at least may ginawa tayu para labanan ang bully…nanalo pa tayu sa mata ng matitino at malalawak ang isip at tunay na naniniwala sa United Nation. Pero world kalian ka talaga magiging united?
Mother Nature will enforce the PCA decision. An ocean as big as the South China Sea will dubmerge the land of China.
When this will happen, no one can ascertain, but it will happen.
Good article! An eye opener. After all our efforts, game of power still rules. Who has the bigger weapons have the right to bully. On the positive note, it proves how brilliant we are when it comes to litigation.
What a waste …. fishermen could have benefited more with that P1.4b in the form of new livelihood aside from fishing….
“Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.”
The Collected Works of Abraham Lincoln edited by Roy P. Basler, Volume II, “Notes for a Law Lecture” (July 1, 1850), p. 81.
Why oh why do our leaders refuse to learn from history…….
An empty victory with a USD 30 million pricetag ? A total replacement of our terribly defective automated election system would cost less than this costly exercise in futility. Sayang naman !
Tama ang ginawa ng gobyerno – kahit hindi pa i respeto ng China at least EUROPE, USA, JAPAN, INDONESIA etc. respected nila ruling. HINDI ba malaking VICTORY NA YUN!!! HA!!!
Tapos na ang eksena ni PeeNoy, Albert del Rosario and Carpio……..
What a waste of time, money ,,,,,,,we should have been discussing along time ago…..
But the case is done……lets start talking….anyway,,,,,I think its gonna be the same old story……The PH will be a developed country in 100 years from now if we are lucky.
Our claim to Sabah has been how many decades now ? That is even stronger then the
West Philippine Sea claim……
sinisiraan nyo lang si Aquino kasi napaka ganda ng ginawa nya.. kung hindi tayo nag file ng case sa UN baka sa kanila na palawan ngaun. please mr tiglao, if you hate aquino so much why dont hire a hitman to kill him.
Interesting analysis, but the cases cited are not of much precedent in this case. China is a party to the UNCLOS and the Tribunal does have jurisdiction. The Philippines may be able to maintain a suit in a jurisdiction like the US, where there are substantial Chinese assets, and secure a civil damages judgment which can be executed against Chinese assets. Since many Chinese companies are State owned, this makes China particularly vulnerable to this sort of judgment. The issue is whether US courts would accept a claim, and whether the US DOJ/DOS would intervene on the Act of State Doctrine to protect China. This is actually a very strong decision for the Philippines.
I agree with your point that arbitration is a dispute resolution process where the disputing parties agree to submit their dispute to a third party and agree to be bound by the verdict. In our case China did not agree to the proposed arbitration so it was an invalid process from the start. I cannot imagine why despite this fundamental defect the PAC proceeded to hear the matter and on the basis of the one sided arguments of our side issued a resolution of the matter. This is non binding to China and what we got is a sham resolution nothing more. I am aghast at the cost ($30m) paid to the lawyers and the oversized delegation we sent all a waste of resources that did nothing but worsen the tension in the area. I just hope that the Americans will not use this as their excuse for starting a shooting war in the SCS it we will be a helpless victim of collateral damage the war arena being so close
poor philippines…what for is the tribunal? international lawyers were paid for big amount of money but the decision is not respected by the super powers themselves if they were the one involve …. tsk tsk
poor philippines …..
“The strong do as they will, the weak suffer as they must”. Very sad but generally true!
P 1.4 Billion!!!! That’s a helluva lot of money which the immediate past Admnistration could have used for other economic related projects. Well, we have remained a “puppet nation” of a colonial power that dictates what we can and cannot do!
Nonetheless, President Duterte is in the right track to consider bilateral talks with China who insists that any issue relating to the protection of their “sovereignty” is out of any discussion. The Philippines stands by a similar stance.
So what will be the point of any such talks if China would remain insistent on a stand that has been declared illegal.
Ironic, but true. This needs to be resolved using common sense. I hope the Philippines sits down with China and seeks a peaceful resolution. Both countries have much that they need from one another. It would be foolish not to see that. Put aside pride and seek out what will be of the greatest benefit to the people of both countries.
The hypocrisy of the US and the UK is SHAMEFUL. Although they themselves do not follow the rulings of the Hague Courts, they nonetheless expect others to do so. The UK government under David Cameron is doubly shameful. It even ignored the British High court ruling on letting the Chagos islanders return to their home in Diego Garcia when the islanders sued the British government for redress. It finally boils down to an old North American Indian saying, “White men speaks with fork tongue”. The PH best forget about the ruling and start bilateral talk with Beijing to protect PH rights. Forget about the 1.4 billion pesos. It is gone, foolishly spend by the Aquino administration.
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