ACTING Chief Justice Antonio Carpio continues to amaze me with his ridiculous understanding of international relations.
I still can’t get over how Carpio lied to us when he said that the United States complied with the ruling of the International Court of Justice in the case that Nicaragua had filed against it in the 1980s, which I wrote about in a previous column (“The Nicaraguan option wishful thinking,” The Manila Times, May 25, 2017).
Now, on the second anniversary of the decision on the arbitration case that the Philippines filed against China, Carpio has suggested three ways to enforce the arbitral ruling (“Carpio cites 3 ways PH can enforce The Hague ruling sans China,” Inquirer, July 13, 2018). I’ll parse the first two.
Before anything else, we should first define what enforcement is. An explanation is offered by Yale University professor of international law, W. Michael Reisman, in “The Enforcement of International Judgments and Awards.”
“Enforcement,” Reisman explained, “refers to the transformation, by community means, of authoritative pronouncement into controlling reality.” He further identified two ways of enforcement: 1) direct enforcement, through which the organized community “supervise the physical transfer of what was decreed in authoritative decision;” and 2) indirect enforcement, which entails imposing “sanctions on the miscreant in order to persuade him to comply with community norms.”
Based on this, the essence of enforcement is to make an unwilling party abide with an authoritative ruling, either by actually using physical force or other forms of sanctions to make it do so.
First, Carpio suggested that we enter into a sea boundary agreement with Vietnam. This is premised, he said, on the tribunal’s decision that there are no features in the Spratlys “that generate an exclusive economic zone (EEZ).” He got that right. But how would that agreement “enforce” the ruling? How exactly would this agreement make China comply with the ruling?
More importantly, how would that sea boundary agreement with the Vietnamese affect our own territorial disputes with Vietnam?
According to a document I got from the Department of Foreign Affairs, Vietnam occupies 21 features in our claimed area we call the Kalayaan Island Group (KIG). That’s more than what our country (9) and China (8) occupy in the KIG. Vietnam’s occupation is premised on its belief that it has “indisputable sovereignty,” not just on its occupied features but on the entire Spratly region.
If we enter into a sea boundary agreement with Vietnam, aren’t we also legitimizing their occupation of those KIG features? Perhaps Carpio already sorted this out with his Vietnamese wife.
Second, besides Vietnam, Carpio suggested that we forge a sea boundary agreement with Malaysia, between Borneo and Palawan. Again, how is this relevant to China’s compliance with the arbitral ruling?
In both agreements, Carpio believes that we would enforce the arbitral ruling that there are no features in the Spratlys that generate an EEZ. If that’s the case, then what’s the need to “enforce” that? Does China assert otherwise? To begin with, is there any dispute between China and our country about whether the features of the Spratlys generate an EEZ?
Taiwan is the only party to the dispute that’s vocal against that particular declaration by the tribunal. Taiwan occupies the largest feature in the Spratlys (Itu Aba).
Geographically speaking, Itu Aba qualifies as an island. However, the tribunal ruled that under the UN Convention on the Law of the Sea (UNCLOS), it’s not. The tribunal classified it as a “rock,” which can only generate a 12-nautical-mile territorial sea, without a corresponding EEZ, because it deemed Itu Aba incapable of sustaining human habitation and economic activity on its own.
If Carpio is hell bent on enforcing that tribunal decision that there are no features in the Spratlys that could be legally considered as an island, he should suggest to us how we could make Taiwan accept that Itu Aba isn’t one. Carpio’s supporters should protest outside the Taipei Economic and Cultural Office in Makati to pressure Taiwan to stop considering Itu Aba an island. And former Foreign Affairs Secretary Albert del Rosario should suggest to the Duterte administration that it file a resolution with the UN General Assembly to shame Taiwan into accepting that Itu Aba is legally just a rock.
E-mail: sass@forthemotherland.net
Website: www.forthemotherland.net
Website: www.forthemotherland.net
http://www.manilatimes.net/carpios-idea-of-enforcement/420901/
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