Superpower behavior

There is no doubting as to who our big brother is in the running saga of the West Philippine Sea dispute. So I say this, just as a matter of fact – it is a shame. But the decision would have some more certainty of being implemented by the United Nations (UN), and international pressure could have more lubrication, if the US was such a good role model in complying with UN rulings.

I discuss it here this Sunday, not in the aura of pessimism, but in the spirit of citing precedents on how we get benefits from the UN arbitral ruling, which belied as baseless the claim that is the nine-dash line.

I am talking about the case won by Nicaragua against the US in the International Court of Justice (ICJ). In 1986, the ICJ found that US was in breach of customary international law when it intervened in the manner that it did with the affairs of another state. It also ruled that the US must pay Nicaragua for all damages and injuries caused by its intervention.

The ICJ found that the US trained, financed, armed and supplied the right-winged rebel group Contra to topple Nicaragua’s incumbent Sandinista party that led the resistance against the US military occupation of Nicaragua in the 1930s. While in this case, the US did what it does, which is to act as global police to protect democracy, we can say with some discomfort that this is entirely different from China grabbing Philippine territory – yet there are some parallelisms that stand out.

The US refused to recognize the ICJ’s jurisdiction. In protest of the ICJ taking jurisdiction, the US did not argue orally or in writing before the court the submissions made by the Nicaraguan government. It did submit only a memorial of its protest to somehow enshrine its position and protest, which of course already included in a way its defense. They were much like China not recognizing the UN arbitration court jurisdiction – not participating there, but submitted its defenses by writing letters to the panel of arbitrators.

When the ICJ handed down its ruling in favor of Nicaragua, the US refused to recognize it, consistent with its position that the ICJ does not have jurisdiction. It’s much like what China is now doing in not recognizing the UN arbitral court ruling, to be consistent with its earlier non-recognition of the arbitral court’s jurisdiction.

When the ICJ decision was sought to be enforced, the US, as member of the UN Security Council, maximized its exercise of veto powers. It did so about five times between 1982 and 1986 before the case was brought to the UN General Assembly where the resolution calling for immediate compliance with the judgment. Against the strength of this Resolution passed by all UN member nations, the US still refused to pay.

It’s not all sad ending to that story. The US stopped the “intervention” or support to the Contras. And while it did not pay the judgment fine directly, it forged an agreement with the new Nicaraguan president that it will provide financial assistance and other forms of support, including easing the burden of Nicaragua’s external debt.

In our case, the pressure would have really been determinative as soon as the decision came out if all coastal states intervened in the case. They decided to sit it out and despite the decision in favor of the Philippines, the other coastal states are not expected to file a case against China. For instance, Malaysia looks up to China as their big brother and Taiwan has a similar claim with China. Brunei is claiming one reef but is silent and is not expected to make any noise. Vietnam satisfied itself by winning a face-off with Chinese ships that made China pack up its oil rig operations in Vietnam waters. In other words, we are aligned against China, so it seems, in this battle.

If the US saved face in Nicaragua, we need to accept that for us to get benefits from the ruling, we need to help China save face, or not further lose face. Financial aid, assistance in infrastructure or railways systems in the Philippines are possibilities, indeed. At least all constructions in the disputed areas must cease, or at the very least, our fishermen must be allowed to fish there; otherwise, they will really look like a villain internationally. The solutions will not necessarily bring us the proud sovereign moments we aspire to, but economic consolations coupled with peace and cooperation in the region avoid global disaster and give immeasurable benefits for all.

There are baby steps already happening: China, in reaction to the environmental part of the decision, recently set up the South China Sea environment protection fund; the province of Palawan signed a landmark “friendship agreement” with China’s Ningxia Hui Autonomous Region; and while negotiations with China are not yet on the way, the feeling-out process has begun.

We can’t help but be optimistic about this as the alternative is unthinkable. The Philippines, the little country at the equator, the country that introduced to all nations the emulated non-violent people power, may yet rise to the occasion and show the patient, sensible, little deeds that can tame superpowers and save the world.

* * *

Alexander B. Cabrera is the chairman and senior partner of Isla Lipana & Co./PwC Philippines. He also chairs the Educated Marginalized Entrepreneurs Resource Generation (EMERGE) program of the Management Association of the Philippines (MAP). Email your comments and questions to [email protected]. This content is for general information purposes only, and should not be used as a substitute for consultation with professional advisors.