July 13, 2019
THE international order of sovereign states bases its stability on countries honoring their commitments, without sacrificing their sovereignty. It will break down the moment big countries like China and the US decide not to uphold those commitments which they signed in good faith simply because they can.
Many people have the impression that the United Nations is like a world government and has the power to enforce international law through coercive means. However, aside from sending peacekeeping forces and passing resolutions authorizing economic embargoes, the UN’s coercive power is virtually non-existent.
It has always been the case that international agreements are not enforceable if we are going to base it on the capacity of global institutions and processes to coerce signatories to honor them. The UN and its organs have no police power like sovereign states over their own territories.
The same is true for global bodies, such as the International Court of Justice (ICJ) or the Permanent Court of Arbitration (PCA). These do not have coercive power to enforce their decisions. But then again, even the Supreme Court and local courts of countries, on their own, have very limited power to enforce their decisions without relying on the coercive power of their executive branches. Courts can only issue and serve orders and warrants, but they often need the assistance of the police to conduct searches and arrests. To think that we are talking here about institutions that are imbued with the authority that emanates from the internal sovereignty of their respective states. Thus, we cannot expect that the PCA, or the ICJ, would have that power when there is no international body, not even the UN, that has the same nature of power vested in a sovereign state. These bodies are in fact dealing with sovereign states and not just individual citizens.
Therefore, it is useless to talk about enforceability if the unit of analysis will be international bodies and organs. Enforceability rests on good faith on the part of the contracting state parties to a treaty or international agreement, and the ability of a state to assert its rights even against stronger states.
Otherwise, when states abandon their commitments or surrender their rights then it can lead to the collapse of the world order.
Some people argue that bilateral mechanisms are better ways to solve conflict between two state parties. This is what China prefers in relation to its overlapping claims with several coastal states. However, these have never been successful without good faith, and when the balance of power is heavily tilted towards one party. China prefers bilateral mechanisms because it knows it has more leverage.
Hence, the refuge of weaker states like the Philippines would be to beef up their firewall of deterrence by striking alliances with stronger states, and to stand solidly and keep faith with international law.
The threat of war has always been an effective way by which stronger states are able to acquire more leverage in enforcing their own wills on weaker states. This is precisely why the latter would do well to rely on allies.
Enforceability, therefore, doesn’t rest on the ability of the UN or of international organs to coerce compliance. It rests on the ability of the affected state, using the imprimatur of international law, to use mechanisms that can secure for it the ability to rally allies to make it politically costly for the offending state not to cooperate and comply.
It must be stressed that there are other ways by which state parties can secure their own interests outside the ambit of war-making and saber-rattling. This is what countries without military forces rely on. There are many countries, mostly small island nations, that do not possess an armed instrument of power with which to defend themselves. These include Andorra, Costa Rica, Dominica, Grenada, Haiti, Iceland, Kiribati, Liechtenstein, the Marshall Islands, Mauritius, Federated States of Micronesia, Nauru, Palau, Panama, St. Lucia, St. Vincent and the Grenadines, Samoa, the Solomon Islands, Tuvalu and Vanuatu. These countries rely on alliances with stronger countries that have military capability, even as they put their trust on good faith that international law will be respected.
What is interesting is that these countries without militaries have exclusive economic zones (EEZ) of over 15 million square kilometers, which is larger than the EEZ of any single country in the world. It is also larger than the EEZs of the large coastal states of Indonesia, Canada and Brazil combined.
These countries, while vulnerable to encroachment from more powerful states, rely on their alliances, and on international law. The Philippines, in relation to the West Philippine Sea, and while facing China’s overlapping claims over our EEZ, possesses both a strong alliance with the US through a mutual defense treaty as well as an arbitral ruling that reinforces its maritime claims. Yet, we are the ones that doubt this alliance, and we refuse to use the arbitral ruling as a leverage. We keep on claiming that the ruling is unenforceable simply because China refuses to accept it, and the PCA or even UN cannot compel it to abide by the ruling.
However, in the global arena, enforceability is a burden that we need to bear. It is a duty that we should not abandon. It is most unfortunate that the Duterte administration appears to have downplayed the two things that can help us in enforcing our interests in the face of China’s expansionist agenda, namely our alliance with the US and the favorable award we won from the PCA ruling.
It must be emphasized that enforceability is undermined less when the offending state is recalcitrant, but more when the offended or aggrieved state surrenders or gives up. It is self-inflicted, and this is what will happen in the case of the Philippines vis-à-vis China if we keep holding on to this fallacy of unenforceability.
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