Reply to Carpio

“Despite the tremendous gains that the Philippines achieved because of the arbitral award, the territorial disputes in the West Philippines Sea has not been finally resolved by the tribunal.

I will be a reactor today in the talk of retired Justice Antonio Carpio on the West Philippine Sea (WPS). Although I still have to either read or listen to Carpio’s presentation for this afternoon, I heard him deliver a speech before the last UP Law Alumni Homecoming. I suppose he will repeat the same speech that he delivered there in this afternoon’s event.

What do I have to say by way of reaction? Let me summarize my points as follows:

1. I would like to believe that there exists an honest difference of opinion on the part of those who would want to “enforce” the arbitral decision and those who want to resolve the ongoing territorial dispute between China and the Philippines through diplomatic means and by maintaining cordial diplomatic ties. I would like to believe that the difference is not between those who want to allegedly sell out to China or those who want, as many yellows would claim, to fight for Philippine sovereignty.

The truth of the matter is all parties to the debate should be presumed to have utmost love of country, albeit differing in their approaches on how best to advance the national interest.

The reality too is that the debate is politically charged because the opposition has used the issue to gain brownie points from the electorate and instigate hatred among the public for the President. I’m happy that on the basis of the President’s trust ratings they have not succeeded as he still enjoys tremendous public support with his approval ratings still in the 80s.

2. The idea that an arbitral award needs “enforcement” is a non sequitur. All arbitral findings are binding on the parties thereto and are final and executory. No step needs to be taken by either of the parties unless the arbitration is covered either by the New York Convention or the ICSID (International Centre for Settlement and of Investment Disputes) Convention where some arbitral decisions are made enforceable as if they are final and executory decisions of their domestic courts.

Unfortunately, the ad hoc decision of the ad hoc arbitral panel pursuant to the dispute settlement procedure of the United Nations Convention on the Law of the Sea (UNCLOS) is not covered by either of these treaties. Their binding nature hence depends on the good faith of either of the parties to comply with the arbitral decision.

Under UNCLOS, ad hoc arbitral decisions cannot be enforced as if they are final and executory decisions of domestic tribunals.

3. Moreover, there is still no effective mechanism under International Law where these types of arbitral awards can be enforced against a party litigant. Some critics of International Law as a law precisely point out to the lack of “international policemen or sheriffs” as a basis for arguing that International Law is not a law at all.

I differ from this point of view because not all laws require specific enforcement mechanisms in order to become a law, Hence, in the Philippines, our civil laws and administrative laws are considered law even if they are not enforceable generally by the police.

Nonetheless, it is also a peculiar feature of International Law that decisions of arbitral bodies, constituting a subsidiary means for the existence of a customary norm of International Law under Article 38 of the International Court of Justice (ICJ) Statute, is executory by itself. It is perfect by way of a decision and no step has to be done to enforce it. Its existence per se is the enforcement mechanism.

4. Strictly speaking, the only means to enforce the arbitral award is through the UN system either through a binding Chapter 7 Collective Security Measure as authorized by the Security Council or by the General Assembly itself.

We have had arbitrations referred to the Permanent Court of Arbitration by the UN Security Council by itself. This means that the Council has expressed its willingness to resort to both non-military and military sanctions to enforce the compulsory arbitral award.

An example of this would be the Eritrea vs Yemen arbitral award. Here, it is impossible that the SC will enforce these kinds of awards. But the reality is China’s vote, as a permanent member of the Security Council, is required for a Chapter 7 enforcement measure. I dare say that any such resolution would inevitably be vetoed by China.

The alternative, a GA Resolution akin to the Uniting for Peace Resolution which the GA adopted for the Congo and which the ICJ sustained in the Certain Expenses case, could also be a remedy. Given the influence though of China in the international community, the possibility of another GA-approved uniting for Peace Resolution appears remote.

5. It also bears stressing that despite the tremendous gains that the Philippines achieved because of the arbitral award, the territorial disputes in the WPS has not been finally resolved by the tribunal. This is because the International Tribunal for the Law of the Sea could only resolve, as in fact it did, issues relating to the Convention on the Law of the Sea. It did not resolve the conflicting claim to islands, which are governed by different International Law norms, to wit, the principle of superior claim on the basis of effective occupation. In fact, because the dispute focuses primarily on conflicting claims to territory, islands, the UNCLOS is ultimately of limited applicability, although I acknowledge it has clarified issues, the most important of which is the validity of the nine-dash lines.