Difficult, but not impossible


In 1986 the Republic of Nicaragua filed a complaint against the United States before the International Court of Justice (ICJ). The ICJ ruled that the US violated international law by supporting the Contras mercenaries trained and funded by the US, in its attempts to overthrow the Sandinista government which had gained power in that country by toppling the Anastasio Somoza dictatorship.

Somoza’s family had ruled Nicaragua from 1937 to 1979 with US support, but a popular uprising led by the socialist Sandinista movement overthrew the corrupt dictatorship in 1979.

The US had directly intervened in Nicaragua since 1909 when it overthrew its sitting president.

From 1912 to 1933, the US maintained a force of US Marines to occupy that country to, among other intentions, prevent anyone from building a canal in Nicaragua that would compete with the US-operated Panama Canal.

The administration of US President James Carter (yes — the same “Jimmy” who is widely held to be a paragon of moral uprightness and of human rights advocacy) supported with financial and other aid the ousted Somocistas.

When Ronald Reagan assumed the US presidency in 1980, he deepened US involvement with the anti-Sandinistas by directly aiding the Contras (literal translation: Those Against), whom the US had helped organize and train in the first place.

In its complaint before the ICJ, the Sandinistra-run government of Nicaragua charged the US with violating its treaty obligations under the provisions of the United Nations Charter; the Charter of the Organization of American States (OAS); the Convention on the Rights and Duties of States; and the Convention on the Duties and Rights of States in the Event of Civil Strife.

Nicaragua further alleged that the US had violated international law by launching armed attacks against Nicaragua on land, sea and air; intervening in its internal affairs; killing, wounding and kidnapping Nicaraguan citizens; infringing upon the freedom of the high seas and interrupting maritime commerce; and using force and the threat of force against Nicaragua.

Nicaragua demanded that the US cease all such actions and that it pay reparations for the damage inflicted on the property, economy and people of Nicaragua.

The ICJ agreed that Nicaragua had just cause for its complaint. It ruled that the US had engaged in, and must stop, the “unlawful use of force” against that country, and that it pay reparations for the damage it had inflicted.

The US had refused to participate in the proceedings from the very beginning, and challenged the ICJ’s jurisdiction over the case. When the judgment was released, it simply refused to comply, and Nicaragua never received the reparations the ICJ had mandated.

In 2003, the US, despite the absence of a UN mandate, attacked and occupied Iraq, a sovereign country which under the UN Charter and the two conventions mentioned above, had the same rights as Nicaragua. Israel, the US’ closest Middle East ally, has ignored and violated dozens of UN resolutions. The Philippines itself, middling power that it is, has ignored an October 2011 UN Human Rights Committee (UNHRC) declaration that the Philippine libel law, which criminalizes libel, is “excessive” and should be reviewed.

Described as “much awaited” and “of great significance,” the ruling of the Permanent Court of Arbitration (PCA) basically threw out the absurd claim of capitalist China that over some 80 percent of the West Philippine Sea is part of its territory. China’s “nine-dash line,” ruled the tribunal, is without basis under the 1982 UN Convention on the Law of the Sea (UNCLOS), which some 160 countries including China (but not the US) have ratified. The ruling practically depicted China not only as in violation of the rights of other countries, but also as environmentally irresponsible, and even dangerous for its refusal to respect international law.

The implications for the Philippines of the tribunal’s affirmation of its rights under the UNCLOS include the freedom of Filipino fishermen to fish in areas like the Scarborough Shoal and to explore for natural gas and other resources within its exclusive economic zone.

As far-reaching as the PCA decision may be, and as has been demonstrated by other powers, in the same way that the US refused to participate in the proceedings in Nicaragua’s case before the ICJ and refused to pay reparations; in the same way that it ignored the UN and world opinion when it attacked Iraq in 2003; in the same way that Israel has ignored dozens of UN resolutions — and in the same way that the Philippines ignored the UNHRC’s declaration urging a review of its 84-year-old libel law — China can simply choose to ignore it, there being no existing means of compelling states to comply with the decisions of international tribunals and other bodies.

Unfortunately for China, and fortunately for the Philippines, China is not in the best position to do so. The PCA ruling gives the Philippines the legal and moral high ground to assert its rights and to demand an end to Chinese aggression in the West Philippine sea, but China’s compliance will depend on whether it believes that it will be in its long-term benefit to do so. Capitalist and imperialist states have complied with international law only when it is in their interest, and there is no reason to believe that capitalist China will be any different.

China is besieged by internal problems, including escalating protests within its borders against the increasing disparities in economic opportunity, income, and wealth among its population created by capitalist development. It risks being isolated in a way that the US, for all its violations of international law, has NOT been, through, among other means, the global corporate press and media, which are firmly in the hands of Western, predominantly US, interests.

The US and its allies’ violations of international law, conventions and protocols and their ignoring UN resolutions have hardly been reported in the handful of global media giants’ TV networks, newspapers, and other platforms. These media organizations, for example Fox News of the Rupert Murdoch media empire, are in many ways instruments of Western propaganda. For billions of people around the world, the US and its allies are the heroes in a morality play in which the villains and demons — for example, Russia and China — are its rivals. China’s aggressive behavior has in fact been widely and correctly criticized in the Western media. China cannot expect any support from the global media oligopoly, which basically reflects Western views and are committed to the defense of Western political, economic and strategic interests. How a power is perceived is crucial to its capacity to do business across the globe, and the perception is that China is an international bully. Its insistence that the Philippines negotiate with it by also ignoring — “disregarding” — the PCA ruling is enhancing its image as a lawless power.

With even more certainty can China expect no support from the major powers, including the US, with which it has an uneasy relationship, and which has its own interests to advance and protect in the region. The same can be said of the Philippines’ ASEAN neighbors, which are justifiably leery of Chinese intentions, and which are even now being emboldened by the PCA ruling to be more forthright in resisting Chinese incursions in Southeast Asia. Getting China to comply with the PCA ruling will be the difficult task of the Philippine panel in the bilateral talks — which definitely should be conducted in the context of the PCA ruling — that the Duterte administration says it will initiate. But it will not be impossible.

Luis V. Teodoro is on Facebook and Twitter (@luisteodoro). The views expressed in Vantage Point are his own and do not represent the views of the Center for Media Freedom and Responsibility.


Published in the Business World
July 22, 2016

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