IT is kind of hilarious that while the little brown Americans in President Marcos, Jr.’s administration keep echoing the American propaganda line that China has been violating the “rules-based international order,” the US repudiates both the United Nations Convention on the Law of the Sea (Unclos) and the International Criminal Court (ICC) — the two institutions that are among the pillars of the so-called “rule-based international order.”
China was among the first countries that, together with us, signed the Unclos in 1982, although it claimed that the compulsory arbitration in 2013 between the Philippines and China not only violates the treaty’s scope (which is solely over maritime rights and not sovereignty claims). It claimed that Unclos also requires contending countries to first seek for voluntary negotiations to attempt to settle competing claims – which the Philippines did not.
On the other hand, China is among the 42 countries in the world – representing 60 percent of humanity – which like the US rejected the ICC on the ground that it intrudes on their sovereignty, a main part of which is their exclusive right to try their citizens accused of committing crimes on their own soil.
The US had even moved to protect itself from the ICC’s reach, and signed agreements with a number of ICC member countries to exclude the US from any of the court’s investigations and trials.
By contrast, I cannot understand why legislators like Edsel Lagman, Risa Hontiveros, and left-wing party-list representatives want to give up a major part of our sovereignty – the sole power of our judiciary to try Filipinos – for their revenge project against former President Rodrigo Duterte. Isn’t that too much?
Or have they chosen to become minions of a political bloc that desires to perpetuate this regime for at least two generations, by demonizing the Dutertes? Rodrigo Duterte is no longer in power, do they fear him so much he could influence a court’s decision on whether his war against drugs involved illegal extrajudicial killings? But not one of these legislators has even filed any case on this matter here. Such hypocrisy.
The US of course is one of the few countries that really should be tried before an international tribunal for crimes of aggression and against humanity. Its invasion of Iraq, Afghanistan, Syria and Yemen resulted in the death of at least 1 million people, and indirectly another 3.4 million. (See https://watson.brown.edu/costsofwar/files/cow/imce/papers/2023/Indirect%20Deaths.pdf)
None of these wars had any authorization from the UN Security Council nor any other international body. Nobody can tell the world’s hegemon what to do and what not to do. The US follows no court: The International Court of Justice (ICJ) in 1986 upheld Nicaragua’s suit against the US for attempting to overthrow the Sandinista government then. Nicaragua asked for $17 billion in damages. The Americans ignored the decision favoring Nicaragua made by the ICJ, another pillar of the ‘rules-based international order.’
To emphasize that the US isn’t even hiding its wanton disregard of international law, I quote the artificial-intelligence service ChatGPT*, to which I asked three questions:
What are the criticisms against the ICC?
The ICC has faced various criticisms since its establishment. Some of the key criticisms include:
Bias and selectivity: The ICC has been accused of being biased against certain nations or leaders, particularly those from Africa. Critics argue that the court disproportionately targets African states while ignoring crimes committed in other parts of the world.
Political influence: There are claims that the ICC is influenced by political considerations rather than just legal ones. This is linked to the perception that powerful countries or those with significant influence in international politics can steer the ICC’s actions.
Lack of universal jurisdiction: The ICC does not have universal jurisdiction, as some major countries, including the United States, Russia and China, are not party to the Rome Statute (the treaty that established the ICC). This limits the court’s reach and effectiveness.
Sovereignty concerns: Some countries argue that the ICC infringes on national sovereignty. They contend that it undermines domestic legal systems and the principle of national self-determination.
Effectiveness and efficiency: The ICC has been criticized for its slow pace in conducting investigations and trials. Critics point to the lengthy duration of cases and question the court’s efficiency and effectiveness in delivering justice.
Limited enforcement mechanisms: The ICC relies on member states to arrest and transfer suspects to the court. This dependency has led to situations where indicted individuals remain at large because some states are unwilling or unable to apprehend them.
Cost and resource allocation: The operation of the ICC is expensive, and critics argue that the resources could be better utilized. They question whether the outcomes achieved by the ICC justify the financial and resource investment.
Impunity and selective justice: The court has been accused of offering selective justice, only prosecuting some perpetrators while others, often from more powerful states, remain immune from prosecution.
Impact on peace processes: In some cases, the ICC’s interventions are seen as potentially harmful to ongoing peace processes. The argument is that the threat of prosecution may deter warring parties from engaging in peace negotiations.
Questionable legitimacy and representation: As not all countries are members of the ICC, its legitimacy and representation on the global stage have been questioned, particularly by non-member states.
These criticisms reflect the complex nature of international law and justice, highlighting the challenges faced by the ICC in its mission to prosecute serious crimes of international concern.
Why has the US not joined the ICC?
Here are some of the key reasons:
Sovereignty concerns: The US government has expressed concerns about surrendering its sovereignty to an international body that could potentially subject US citizens, including military personnel and political leaders, to prosecution without the consent of the US government. There are worries that the ICC’s jurisdiction could be used for politically motivated prosecutions against American citizens.
Bilateral agreements: The US has sought to protect its citizens from ICC jurisdiction by negotiating bilateral agreements, commonly known as Article 98 agreements, with other countries. These agreements aim to exempt US citizens from the ICC’s jurisdiction when they are in those countries. The US has signed such agreements with numerous countries, effectively shielding its citizens from ICC prosecution in those places.
Concerns about the court’s effectiveness: Some critics argue that the ICC has been slow and ineffective in prosecuting individuals responsible for serious international crimes. They point to lengthy investigations, limited resources, and difficulties in obtaining the cooperation of member states as factors that hinder the court’s effectiveness.
Opposition from Congress: The US Congress has been wary of the ICC, passing legislation such as the American Service-Members’ Protection Act (ASPAs) that restricts US cooperation with the court. ASPA, for example, authorizes the president to use military force to rescue American citizens detained by the ICC and prohibits certain forms of assistance to the court.
Concerns about bias: Some US officials have expressed concerns about perceived bias within the ICC, particularly with regard to its focus on African cases and its treatment of Israel. They argue that the court disproportionately targets certain countries or regions.
Change in administration: The US government’s position on the ICC can vary depending on the administration in power. Different US presidents may have different priorities and attitudes toward international organizations, including the ICC.
It’s worth noting that while the United States is not a party to the Rome Statute that established the ICC, it has engaged with the court in various ways, such as providing support for ICC investigations in specific cases and participating in discussions about its functioning. The US remains an observer state at the ICC, meaning it can engage with the court’s activities without being a full member.
Why has the US not joined the UN Convention on the Law of the Sea?
The US had not ratified the United Nations Convention on the Law of the Sea (Unclos). The reasons for this non-ratification are complex and can be attributed to several factors:
Sovereignty concerns: One of the main reasons cited by opponents of Unclos in the United States is concerns about sovereignty. Some argue that the treaty could infringe on US sovereignty by subjecting US actions in its coastal waters to international oversight.
Exclusive economic zone (EEZ): The US already adheres to many of the provisions of Unclos through customary international law. The establishment of the US exclusive economic zone (EEZ) and the management of its marine resources are consistent with Unclos principles. Some believe that Unclos would not significantly change the legal framework already in place.
Dispute resolution mechanisms: Unclos includes a dispute resolution mechanism that allows countries to bring disputes related to the interpretation and application of the treaty to an international tribunal. Some opponents argue that this mechanism could be used against the US in ways that are not in its best interest.
Political opposition: Unclos has been a subject of political debate in the United States for many years. While the treaty has gained support from various administrations, it has also faced opposition in the US Senate, where it requires a two-thirds majority vote for ratification.
Other priorities: Over the years, other domestic and international issues have taken precedence over the ratification of Unclos, pushing it down the list of legislative priorities.
And the LBAs (little brown Americans) in this government always mouth the US line on the “rules-based-international-order”?
*ChatGPT isn’t of course always accurate, and its use to a columnist is that it very quickly searches the entire internet for information on the question posed to it, a huge time-saver, evaluates these, and presents it in a succinct statement.
I pointed out in one query that it was wrong in claiming that it was the Permanent Court of Arbitration (PCA) that ruled on the Philippines vs China arbitration. To the credit of this robot, in contrast to many LBAs, including so-called experts on the South China Sea who refuse to correct their misinformation, ChatGPT replied immediately: “I apologize for any confusion in my previous responses. The ruling against China in the South China Sea dispute was issued by an arbitral tribunal established under the Unclos.. The PCA itself did not make the ruling; rather, it was the arbitral tribunal convened under Unclos authority that made the decision. I hope this clarifies the source of the ruling in the South China Sea arbitration case.” A robot is more principled than LBAs.
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