ANTONIO T.

CARPIO
PERPETRATING A MYTH OR MISLEADING THE PUBLIC
Atty. JOSE A. OLIVEROS

At an on-line forum sponsored by the Philippine Bar Association held last Friday,
April 30, 2021 to discuss the enforcement of the July 2016 arbitral award in the
Philippines-China arbitration proceeding held under the auspices of the Hague-based
Permanent Court of Arbitration, retired Supreme Court Justice Antonio T. Carpio urged
the Philippine Government to sponsor a resolution in the United Nations General
Assembly urging China to comply with the arbitral award.

As if confident that such a Philippine-sponsored resolution will receive the

majority vote of the members of the UN General Assembly, Carpio boasted that “ a
resolution of the UN General Assembly calling China to comply with the Award will send
a strong moral message to China that the world will not legitimize China’s illegal act of
seizing the South China Sea.”

Carpio then cited the cases of Nicaragua versus United States of America
(Nicaragua case) and the Mauritius versus United Kingdom (Mauritius case) obviously
to convey the impression that even such Great Powers as the USA and the UK, both
permanent members of the UN Security Council with veto power, will comply with an
adverse decision against them if supported by a UN General Assembly resolution.

This is completely false and patently misleading as will be shown in the

succeeding paragraphs.

The Nicaragua versus US case

In 1986, the International Court of Justice (ICJ) in a case brought before the ICJ
by Nicaragua against the United States, ruled that the US had breached its obligation to
Nicaragua for supporting the Contra rebellion against the Sandinista administration, for
laying mines in Nicaragua harbors and imposing a trade embargo against Nicaragua.
The ICJ ordered the US to lift its trade embargo, remove the mines it had laid on
Nicaragua harbors and pay compensation for that act.

The US vowed not to comply with the ICJ decision. Prior to that, the US
withdrew from the merits phase of the proceedings after losing in the jurisdiction phase
where it had participated. After the release of the ICJ decision, the US further withdrew
from the compulsory jurisdiction of the ICJ.

Under the United Nations Charter, implementation of ICJ decisions is vested in

the UN Security Council. Nicaragua, therefore, went to the UN Security Council to
demand implementation of the ICJ ruling but as expected the US vetoed the proposal.
Nicaragua appealed to the UN General Assembly and succeeded in securing a
resolution calling for US compliance. Even the US Congress sided with Nicaragua by
cutting-off funding to the Contra rebels. But then US President Ronald Reagan

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continued to extend covert support to the Contras. It was only in 1989 when George H.
W Bush was elected US President followed by the electoral defeat of the Sandinistas in
1990, that the US lifted its trade embargo against Nicaragua and started giving
substantial economic aid to that country. Still, the US did not pay compensation to
Nicaragua.

The Mauritius versus United Kingdom case:

Mauritius, a tiny island-country in the middle of the Indian Ocean was a former
colony of the United Kingdom which the UK granted independence only in 1968. In
2010, the UK constructed what it called a “marine protected area” (MPA) around the
Chagos Archipelago which the UK had split from Mauritius in 1965. Mauritius then
initiated arbitration proceedings before the Permanent Court of Arbitration (PCA)
questioning the action of the UK. Mauritius contended that it reluctantly agreed to the
Chagos Archipelago being split away from Mauritius because it was one of UK’s
conditions in granting independence to Mauritius.

On March 18, 2015, the Permanent Court of Arbitration unanimously held that

the marine protected area (MPA) which the United Kingdom declared around the
Chagos Archipelago in April 2010 was created in violation of international law. The UK
ignored the arbitral panel’s ruling.

On June 22, 2017, the UN General Assembly adopted Resolution No.71/292,

requesting the International Court of Justice for an Advisory Opinion whether “the
process of decolonization of Mauritius was lawfully completed when Mauritius was
granted independence in 1968, following the separation of the Chagos Archipelago from
Mauritius.

In its Advisory Opinion delivered on  February 25, 2019, the ICJ concluded that
“the process of decolonization of Mauritius was not lawfully completed when that
country acceded to independence” and that “the United Kingdom is under an obligation
to bring to an end its administration of the Chagos Archipelago as rapidly as possible.”

Then three months later, the UN General Assembly voted overwhelmingly in

favor of the Chagos Islands being returned to Mauritius with 116 states backing the
move and only six against. Two of those who voted against were the UK and the USA.
But the UK did not act describing the ICJ ruling as an "advisory opinion, .not a
judgment". The UN gave the .UK. six months to hand control of the Chagos Islands —
an archipelago in the central Indian Ocean — back to Mauritius, but this deadline has
long passed but still the UK had not complied.

Lastly, just last January 28, 2021, the United Nation's International Tribunal for
the Law of the Sea ruled, in a dispute between Mauritius and Maldives on their maritime
boundary, that the United Kingdom has no sovereignty over the Chagos Archipelago,

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and that Mauritius is sovereign there. The United Kingdom disputes and does not
recognize the tribunal's decision.

The Nicaragua and Mauritius cases underscore the fact that great powers like
the US and the UK can ignore outright or stubbornly defy decisions of international
tribunals or even of the United Nations General Assembly itself, except in particular
cases where they believe it is in their best interest to comply.

For Justice Carpio, therefore, to claim that on the basis of the Nicaragua and
Mauritius cases a UN General Assembly resolution- whether sponsored by the
Philippines or any country – calling for China to comply with the July 2016 arbitral award
in the RP-PROC arbitration case is either to perpetrate a myth or to mislead the public.

-o0o-