Commentary: When Rappler enabled Carpio’s lie

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THAT the United States complied with the International Court of Justice (ICJ) decision on the 1986 case that Nicaragua filed against it is one of the blatant lies that Rappler enabled. It was an erroneous claim that Supreme Court Associate Justice Antonio Carpio made a year before the release of the decision on the South China Sea arbitration case that the Philippines had filed against China.

Dampening the fears that the arbitral case wouldn’t amount to anything substantial, Carpio insisted that China would comply, just like how the US complied in the Nicaragua case. Rappler journalist Carmela Fonbuena wrote about it on July 7, 2015, uncritically echoing what Carpio said, without investigating what happened in the case.

What further highlighted Rappler’s participation in Carpio’s deception was when they ignored what Filipino international law scholar Aloysius Llamzon said about compliance and the Nicaragua case in “Jurisdiction and Compliance in Recent Decisions of the International Court of Justice.” Carpio cited Llamzon’s 2008 paper to support his claim that there was a “big compliance” with the decisions of international courts.

Rappler provided a link to this publicly available paper; and it’s very likely that that’s all they did with the paper.

“Compliance,” Llamzon explained, “[consists]of acceptance of the judgment as final and reasonable performance in good faith of any binding obligation. Good faith, in turn, has been defined by the ICJ in one context as a duty ‘to give effect to the Judgment of the Court,’ which undoubtedly precludes superficial implementation or attempts at circumvention.”

These conditions were not present in the Nicaragua case. As I wrote in my column on May 25, 2017 (“The Nicaraguan option myth”),“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’.”

What the US did actually fits the definition of defiance that Llamzon used: “…wholesale rejection of the judgment as invalid coupled with a refusal to reply.”

Commenting on the Nicaragua case, Llamzon emphasized that the US didn’t appear in the merits phase of the case and afterwards defied the ICJ’s judgment. Llamzon even called the Nicaragua case “The last instance of open defiance…[of ICJ judgments].”

So how could Rappler miss this? It’s either they read the paper and ignored its findings or didn’t read it at all!

Carpio used Llamzon’s study to predict that China would comply with the judgment of an arbitration court. Yet the comparison only betrayed Carpio’s lack of critical appreciation of Llamzon’s paper.

The greatest predictor of compliance with ICJ judgments is state consent to the adjudication process. States give this consent either by forging special agreements with their adversaries to submit their specific disputes to the ICJ for adjudication or by accepting Article 32 of the statute of the ICJ on compulsory jurisdiction. If states don’t support the adjudication process (e.g. by not participating in the case), chances are they wouldn’t honor the resulting judgment, just like what happened in the Nicaragua case.

In the five post-Nicaragua cases Llamzon discussed, three had special agreements; two commenced because the state parties accepted the ICJ’s compulsory jurisdiction. In all cases, the state parties accepted and participated in the adjudication process, even though some of them resisted at first. None of these cases resembled what happened to the Nicaragua case and in the South China Sea arbitral case.

The Philippine vs China arbitration case is more akin to the Nicaragua case than to any of those Llamzon considered. It’s also worth noting that the arbitration case the Philippines filed against China doesn’t have the same enforcement mechanism available to ICJ judgments.

Article 94 of the UN Charter allows a party to a case adjudicated by the ICJ to ask the UN Security Council (UNSC) to give effect to the decisions. Nonetheless, the UNSC doesn’t enforce the decision in the same way states enforce decisions of their local courts. The ICJ decision on the Preah Vihear Temple dispute between Thailand and Cambodia is a telling example. Citing Thailand’s violation of the ICJ decision, Cambodia requested the UNSC to intervene. In response, the UNSC directed the Association of Southeast Asian Nations (Asean) to mediate.

So, it was quite a stretch for Carpio to compare compliance with ICJ decisions with the decision of the arbitral court on Philippines vs China.

Further, if Carpio’s researchers diligently did their homework, they would have encountered Stephen Gent and Megan Shannon’s Bargaining Power and the Arbitration and Adjudication of Territorial Claims (2014), which studied the consequence of balance of power (measured in terms of material capability) of the disputants to their compliance with international rulings on territorial disputes. Thirty- seven territorial disputes from 1816 to 2001 that underwent arbitration or adjudication were considered.

The key finding: “When significantly stronger states, in terms of material capabilities, are asked to make greater territorial concessions than their counterparts, compliance is less likely.”

These insights could have sobered the strategy of hope that the Aquino administration employed at the time with a strategy based on realism. And with their gargantuan resources to do more in-depth research, Rappler, which was a very influential voice at that time, could’ve been a sobering agent rather than a purveyor of lies and misunderstanding.

(Published in The Manila Times on 6 February 2018)


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