The hopes of the Filipinos go with President Duterte as he sits at the negotiating table with China this week. He carries with him a historical understanding of the trade and cultural relationship between these two countries.
The arbitration case the Philippines won at the Permanent Court of Arbitration in The Hague is a comfort and clarification to some and confusing to others. It is essential to approach negotiations pragmatically without aggression and condescension by understanding the furor raised by a commonly invoked case.
The real score behind Nicaragua v. the United States
On the 7th of July 2015, Carmela Fonbuena of Rappler published an article with this bold headline: “China, like US in old case, will comply with ruling — SC Justice.” It was meant to assure the Filipino public that the Philippine arbitration case against China will be a victory that the Philippines will actually enjoy — champagne for everybody!
Fonbuena based her triumphalist article on Justice Antonio Carpio’s analysis of different events in international relations, including the 1986 Nicaragua v. United States case at the International Court of Justice (ICJ). Recently, Rappler quoted Paul Reichler, Nicaragua’s lawyer and the lead counsel of the Philippines against China, saying that the enforcement of the arbitration decision ”will depend on the conduct of other affected states and the international community in general.”
Justice Carpio’s views were sought to dispel “naysayers” who believe that the arbitration case wouldn’t “amount to anything.” On the other hand, Reichler is reassuring Filipinos that the decision can be enforced. Recently, Filipino political scientist Richard Heydarian said that if Mar Roxas became president, the Philippines could have taken the “the Nicaraguan option.” According to Heydarian:
“Then Nicaragua went every single year to the UN in different international fora, embarrassing the US, calling it a bully, and trying to mobilize the international community to force the US to comply with it. Eventually the US complied in an indirect, partial way.”
I’m one of those naysayers. Justice Carpio’s analysis of what happened in Nicaragua is wrong. Reichler’s statement is based on historical amnesia. And Heydarian’s analysis is factually incorrect.
The way law works in the international realm is not the same as how it operates within a country. For example, in general, trial in absentia is not an accepted judicial practice in most countries. In the arbitration case between the Republic of the Philippines and the People’s Republic of China, we witnessed a case proceeding without the other party present in the court. But the crucial difference is the absence of a credible institution that would enforce the decisions of international courts. Negotiations between States on how to enact international decisions are inevitable. If not negotiations, hard power options such as sanctions and use of force would be the other means to ensure the compliance of the losing party.
The UN Charter allows a party to a case being adjudicated by the ICJ to ask the UN Security Council (UNSC) to give effect to the decision (Article 94, par. 2). However, the UNSC is not obliged to enforce it. And as Constanze Schulte notes in Compliance with Decisions of the International Court of Justice, ICJ cases referred to the UNSC are scant because “cases of defiance regularly involved a permanent member either on the applicant or the respondent side.”
One example of these cases is the 1986 ICJ case between Nicaragua and the United States: the Case Concerning the Military and Paramilitary Activities in and Against Nicaragua. It was about how the US violated Nicaragua’s sovereignty by intervening in its internal affairs by supporting the Contras against the Sandanistas. The ICJ ruled in favor of Nicaragua and ordered the US to pay reparations. The US didn’t participate in the merit phase of the case; withdrew from ICJ’s compulsory jurisdiction (until now the US, including three other members of the P5: China, Russia, and France, has not recognized the compulsory jurisdiction of the ICJ); vetoed all UNSC resolutions related to it; and ignored the UN General Assembly resolution urging the US to comply.
According to the Rappler article, the ICJ asked the United States to pay $370.2 million in reparations. The United States didn’t pay it; but according to Justice Carpio, the US eventually “complied” by providing Nicaragua “half a billion dollars in economic aid in the first two years of the presidency of Violeta Chamorro…there was compliance in a way that saved the face of the US. The US paid and Nicaragua was happy.” As a compromise, Justice Carpio said that “Chamorro asked Nicaragua’s parliament to repeal a law that required the US to pay damages.”
It is not true that the ICJ awarded Nicaragua a specific amount of reparation. Nicaragua asked the court $370.2 million, but the court didn’t award that amount. The court decided that “the form and amount of such reparation, failing agreement between the Parties, will be settled by the Court, and reserves for this purpose the subsequent procedure in the case.” That subsequent procedure didn’t happen because Nicaragua withdrew the case.
After Violeta Barrios de Chamorro succeeded Daniel Ortega as President in April 1990, a September 1990 New York Times article reported that the Bush administration was pressuring her “to abandon a judgment of as much as $17 billion that Nicaragua won against the United States at the International Court of Justice during the contra war.” The New York Times article also noted the following:
”The United States wants the matter dropped. That’s it, no discussion,” said one foreign diplomat in Managua.”
That message was delivered most clearly earlier this month, when Mrs. Chamorro’s chief of staff, Antonio Lacayo Oyanguren, visited the State Department for meetings in which the court case was at the top of his agenda.Mr. Lacayo, who has resisted intense American pressure on issues such as Mrs. Chamorro’s decision to permit Sandinista officers to retain key military posts, returned to Managua in a chastened mood.
”We are analyzing the suitability of establishing a commercial treaty between Nicaragua and the United States,” Mr. Lacayo said at a news conference upon his return to Managua, ”and within that framework, people in the United States Administration and Congress will find the I.C.J. suit difficult to understand. ”We must decide,” he added, ”whether we should insist on receiving an indemnity that the United States says it will never pay, or accept the friendship of a nation and people that want to look to the future.’
Contrary to Justice Carpio, Reichler, and Heydarian’s fantastical reading of what happened, Nicaragua caved in to US pressure. In September 1991, Nicaragua sent the ICJ a letter renouncing “all further right of action based on the case” and subsequently requested the court to discontinue the proceedings and remove the case from the list. It wasn’t because the United States already agreed to pay reparations but because Nicaragua and the United States “reached agreements aimed at enhancing Nicaragua’s economic, commercial and technical development…”
These agreements aren’t reparations the US paid. Reparations entail a recognition of wrongdoing, in this case an admission from the United States that the ICJ judgment was right. That didn’t happen in this case. In fact, in a letter it sent to the ICJ, the US, while welcoming the decision of Nicaragua to discontinue the proceedings, reiterated its position that the ICJ “is without jurisdiction to entertain the dispute and that the Nicaraguan Application of April 9, 1984, is inadmissible.”
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| SOURCE: ICJ, HTTP://WWW.ICJ-CIJ.ORG/DOCKET/FILES/70/9635.PDF |
That the aid Nicaragua received isn’t reparation is further emphasised by the intention of Nicaraguan President Daniel Ortega to revive its claim for reparations against the United States in December 2008 and in July 2011. A lawyer involved in the ICJ case said that it was no longer possible to do this because “the case is most likely closed forever.” Notice how this lawyer didn’t say that the case is already closed because the United States already complied with it. How could Justice Carpio miss this? Is this a case of ignorance or wilful disregard of fact? Why didn’t Rappler fact check and balance what the honourable judge was saying?
In sum, Justice Carpio, Reichler, and Heydarian are wrong. Nicaragua’s legal victory was a hollow one. The United States didn’t comply with the ICJ decision. What the United States did was pressure Nicaragua to discontinue the proceedings in exchange of aid. The United States did not admit wrongdoing and maintained its position that the ICJ had no jurisdiction over the dispute and Nicaragua’s application was inadmissible. Does this sound familiar? YES. They are the same arguments of China regarding the arbitral case filed by the Philippines.
The Allure of Corcycra
The Aquino-del Rosario foreign policy regime was so antagonistic towards China. Aquino compared China to Nazi Germany twice. The Philippines didn’t have an ambassador to China for a year. And the Arbitral court’s records have shown that Del Rosario didn’t engage in sustained diplomatic bilateral negotiations with China. This is odd because as Louis B. Sohn, a renowned professor of international law and one of those who helped draft the UN Charter in 1945, said:
“It is an axiom of international diplomacy that the most efficient method of settling international disputes is through diplomatic negotiations between the two governments concerned, without any meddling of third parties, other states or international organizations.”
Why didn’t we take the efficient method?
Furthermore, no sustained confidence building measures were initiated. A hotline between Manila and Beijing could have been established in order for the top leaders of the two countries to be able to de-escalate tensions quickly. This is elementary international relations. Yet it wasn’t done. No credible efforts to build trust, find common ground, and forge mutual understanding with China. Why?
Why did the Philippines file the arbitration case? Why didn’t Vietnam do it? Vietnam and China have been fighting since ever - they even went to war several times in their bilateral history! Yet they managed to enter into bilateral negotiations on several very contentious issues, successfully. The Philippines never had a war with China — never in its entire history. Since the Philippines’ territorial disputes with China began in the 70’s, not a single Filipino was killed by China. But the Philippines has killed at least 2 Chinese: one from the mainland, one from Taiwan.
Just like before, the del Rosario group is selling the fairytale that ASEAN can unite against China. Yet after the decision was released on July 12, 2016, ASEAN didn’t release a statement. The anti-China factions has blamed the new Secretary of Foreign Affairs, Perfect Yasay, because he didn’t fight so hard to have the decision included in the recent statement of ASEAN. But what’s the practical use of that statement besides massaging the egos of Filipinos dreaming of #CHexit? However, the REAL AND CONSEQUENTIAL question is: are these ASEAN countries really willing to be like the Philippines: antagonise China? Is it really in their best interests to antagonise Beijing?
Let’s get real and look at the data on the trade relations between China and ASEAN countries. Given the data, how realistic is it for these ASEAN countries to copy Philippines’ uncompromising attitude towards China?
They should turn off their TVs and start reading this classic international relations text and learn from it: Thucydides’ The History of the Peloponessian War. There they would encounter the conflict between Corcyra and the Corinthians.
Just like how Athens decided with whom it would ally between Corcyra and Corinthians during the Peloponessian War, ASEAN states will decide on the basis of their own interests. The Philippines’ appeal to international law and self-righteous morality might be as evocative as the speech of the Corinthians, but as Thucydides narrated, it was Corcyra’s promise of material gains that enticed Athens. The inconvenient truth is: the Philippines is a very negligible trade partner of these ASEAN countries!
It’s not very convincing that ASEAN countries would see that it’s in their best interests to strain their economic ties with China. China is no longer the China during the 1989 Tiananmen Square protest that the world could easily turn its back on. This doesn’t mean that ASEAN countries will bandwagon with China. Based on the data I presented, they will just not see it in their best interests to take an aggressive balancing stance against Beijing in order to support the moral crusade of Manila. In fact, if this conflict escalates to China and the Philippines imposing economic sanctions against each other, the Philippines will suffer while China will only experience a very negligible pinch. The Philippine government spent around 1 billion pesos in order to buy the biggest moral horse it could ride; but it’s so big and heavy, it couldn’t run anymore.
Why did the Philippines act irrationally during Aquino’s administration? Was it because Filipino foreign policy makers are just naturally irrational? Or was there an outside power directing Philippine foreign policy?
The Future of Asia: What Should the Philippines Do Next?
Here’s a simple decision-making tree on what should be the next step of the Philippines. There are three different scenarios imagined here. I didn’t include “multilateral talks” because China doesn’t want it. If the other party doesn’t party doesn’t want to do something, then you remain in the status quo. Besides, if you want to see how successful multilateral talks are on issues of this magnitude, study the Six Party Talks and the involvement of ASEAN in the Preah Vihear disputes between Cambodia and Thailand.
The numbers within the parentheses are the expected pay-offs. The first number is for the Philippines; the second, for China.
Here are my key assumptions about outcomes, which are based on what I know from international negotiations, history, and relations.
1. Philippines negotiate — probability of reaching an amicable agreement with China is HIGH
2. Philippines doesn’t negotiate — Status quo
4. Status quo favours China
5. Philippines uses force, such as sanctions and war (alone or with a coalition)— Philippines gets everything if China doesn’t retaliate. This is wishful thinking.
6. If Philippines uses force and China retaliates, Philippines will suffer the consequences, economically and massacre in Palawan.
Meanwhile, here are my assumptions about preferences.
A. Assumptions about preferences of Philippines
1. Philippines gets everything what it wants without negotiating bilaterally with China. Obviously, wishful thinking. — 10.
2. Philippines amicable agreement with China by entering into bilateral negotiations — 8
3. No bilateral negotiations, status quo — 4
4. Philippines uses force, China doesn’t retaliate, Philippines gets everything. —10
5. Philippine uses force, China retaliates — 0
B. Assumptions about preferences of China
1. China gets everything it wants without negotiating bilaterally with the Philippines — 10
2. China amicable agreement with the Philippines by entering into bilateral negotiations — 8
3. No bilateral negotiations, status quo — 6
4. China doesn’t retaliate, Philippines uses force — 0
5. China retaliates when Philippines uses force —3
Thus, based on this decision making tree, the best action the Philippines should take is to enter into bilateral negotiations with China. And that means diplomacy. And that means compromise, finding mutual grounds and forging mutual understanding with China, which Duterte is now trying to accomplish for the benefit of the Filipino people.
“If you come to a negotiation table saying you have the final truth, that you know nothing but the truth and that is final, you will get nothing.” - Harri Holkeri, former Prime Minister of Finland, diplomat, and peacemaker
Thanks to Clarence Gonzales for his input and for editing this article.
