Poking at Holes in a Net: Challenging Contentions of International Dispute Resolution – By Daniel Kang

I INTRODUCTION

Scholars highlight the adjudication of international disputes through arbitration and judicial settlement as the most effective mechanism for achieving enduring settlements on controversial issues. Despite smaller states favouring adjudication –which attenuates power disparities in their disputes with larger states –adjudication remains flawed and ineffective, failing to achieve accountability from larger states which continue to defy adjudicated outcomes and enjoy impunity.

This essay challenges this perception of international dispute resolution (IDR) mechanisms as ineffectual in achieving accountability from large states, and highlights that small states and individuals may also avoid being held accountable. Concurrently, it seeks to challenge accountability as the defining metric in evaluating IDR mechanisms. It first analyses the Philippines v China arbitration, where a major power has been held accountable for its transgressions. Next, demonstrating that adjudication may fail to achieve accountability from small states and individuals, the essay explores the International Criminal Court’s (ICC) failure to administer international criminal justice through judicial settlement and prosecution of Sudanese president Al-Bashir following the UN Security Council’s referral of Sudan under Chapter VII of the UN Charter.

II PHILIPPINES V CHINA

Arbitration has been identified as the most ‘efficient’ dispute resolution procedure due to its success in resolving complex issues authoritatively, comprehensively, and in less time than other mechanisms.

A The Dispute

In 2014, the Philippines launched arbitration against China under Annex VII of The United Nations Convention on the Law of the Sea (UNCLOS) as ‘a last resort’, challenging China’s contentious nine-dash line demarcating its claimed territory over the Spratly Islands, and Chinese violations of rights possessed by the Philippines within their own exclusive economic zone in the South China Sea (SCS). The Philippines has asserted that both bilateral negotiations and multilateral efforts through ASEAN were ineffectual, with China leveraging its superior power to enforce claims.

The Tribunal decided overwhelmingly in favour of the Philippines, holding that under UNCLOS, China’s nine-dash line claim is illegitimate and holds no entitlement to the territory or resources in the SCS through historical use. As such, neither an exclusive economic zone, nor a 12 nautical mile territorial sea is generated by the features China has claimed. Additionally, these features were mostly held to be in the Philippines’ exclusive economic zone, and China’s unilateral actions in the disputed areas constituted unlawful interferences with various rights of the Philippines’ under UNCLOS.

B Accountability?

Accountability appears not to have been achieved, given China’s rejection of, and refusal to participate in the arbitral process, along with an apparent lack of compliance. China has employed aggressive rhetoric in rejecting the Tribunal’s decision, and increased aggression in protecting territorial claims during the arbitration. China is currently only fully compliant with one of the Tribunal’s rulings, and has continually violated the others.

However, China’s outward defiance should not immediately be taken as evidence of failure in achieving accountability. These defiant actions came as no surprise given China’s rejection of the Philippine’s previous request for arbitration, consistent opposition towards arbitration in resolving boundary disputes, and disagreement that arbitration was the sole viable dispute resolution mechanism. Additionally, the arbitral rendering of a ‘final’ award means the decision cannot be contested, which has compelled China to further assert the credibility of its claims and deter similar arbitral proceedings from other claimants. Lastly, the ruling is also a huge blow to China’s pride, as it delegitimizes the extensive actions it has taken to assert its claims.

A closer analysis of China’s subsequent conduct actually reveals that a measure of accountability has been achieved. The reputational costs of continued defiance are detrimental to China’s broader interests in expanding regional influence and assuming global leadership, and the Chinese leadership’s cognisance of these costs is demonstrated by the immense diplomatic energy expended on contesting the arbitration and its award. This awareness has produced more moderated Chinese conduct, with Chinese governmental statements following the Award becoming relatively subdued, indicating a subtle shift from an adversarial contest towards peaceful dispute resolution. Most significantly, despite continued refusal to honour the award, China is departing from its longheld nine-dash claim, and actively avoids explicit violations of the Tribunal’s ruling against this claim. The arbitration may progressively achieve accountability by reducing China’s violations of international law, with a likely reduction in China’s invocation of the historic use of high seas to claim control of the SCS. This would temper disputes over sea features and generated entitlements, and reduce Chinese artificial enhancement of sea features to reinforce maritime sovereignty claims.

Additionally, this limited accountability still constitutes a huge success considering that arbitration’s utilisation has been generally limited to resolving less crucial issues such as investment disputes, with states generally avoiding arbitration on more crucial issues involving territory and resource control.

When considering that the economic and political asymmetries between the two states precluded any real chance for the Philippines to negotiate fair terms, arbitration has levelled the playing field between both states. The arbitral decisions were solely based on each state’s legal claim, preventing China from using coercion to guarantee an outcome skewed in its favour. This has sped up the resolution process, which is in the Philippines’ interests given that the dispute was hindering the Philippines’ economic development. Moreover, the limited accountability achieved is still significant against the backdrop of the dispute’s complexity, which has stymied previous attempts at negotiating cooperation, and severely limited the prospects of accountability achieved through arbitration.

First, the SCS is economically significant to both states as a resource-rich region. The SCS provides 10% of global fish stocks, constitutes one of the busiest shipping corridors, and potentially hosts a wealth of untapped hydrocarbons. Control of this ‘offshore El Dorado’ thus motivated both states to vie for exclusive control rather than negotiate for shared management. Each sought to exclusively utilise profits from resource extraction and bolster ongoing industrialization for economic growth, thereby meeting domestic needs and maintaining internal security.

Additionally, the highly political nature of the dispute has severely limited prospects for accountability to be achieved. Despite the Philippines framing the dispute as centred on interpreting UNCLOS instead of determining maritime sovereignty, sovereignty remains the key underlying concern for both parties, heightened in both states by rising nationalism. This heightened importance attached to the SCS has led to both parties eschewing cooperation to avoid compromising their claims over exclusive control of the disputed region.

Lastly, previous attempts at negotiations have been stymied by a lack of confidence and trust, resulting from multiple confrontations between Chinese and Filipino agents in the SCS, and exacerbated by the Philippine’s decision to involve US naval intervention in the dispute. Deteriorating bilateral relations may have thus contributed to China’s reluctance to publicly accept and comply with the award. That China currently enjoys total impunity is therefore an unfair assessment. China’s moderated conduct indicates that at the least, limited accountability has been achieved.

C Reassessed Evaluation

Furthermore, accountability should not form either the sole or defining metric in evaluating arbitration, with the arbitration’s value here extending beyond accountability. The arbitration’s failure to achieve full accountability from China given its inherent inability to provide formal enforcement should not detract an evaluation of its real utility in convincing, instead of coercing, China to pursue subsequent cooperation and peaceful dispute resolution.

An appropriate evaluation of this arbitration should consider its intended purpose. The Philippines never intended arbitration to completely resolve the dispute, noting that exclusive reliance on arbitration to achieve accountability would be a ‘multi-generational struggle’. Instead, arbitration was initiated as a step towards dispute resolution by breaking the diplomatic deadlock between the two states, providing a basis for subsequent successful bilateral negotiation for cooperation.

This purpose has been fulfilled, with the finality of the arbitral award not extended to the broader dispute resolution process. The Tribunal has avoided determining the ‘future conduct’ of both parties, precluding a restriction of further dispute resolution options. Instead, arbitration has strengthened the positions of the Philippines in bilateral negotiations with China, while opening pathways to cooperative dispute settlement.

Bilateral negotiations have been successfully conducted since the award, with the Philippines indicating that the award would ‘take the back seat’ in negotiations. These negotiations are progressively achieving peaceful dispute resolution by achieving cooperation and building trust. They have produced discussions of the potential to grant Filipino fishermen conditional access to the Scarborough Shoal, concluded agreements on joint oil and natural gas explorations to be controlled by the Philippines, and allowed for the creation of trade deals and trust-building bilateral defence coordination initiatives. Most importantly, a peaceful dispute resolution is in sight, with both parties agreeing to start bilateral negotiations to settle their maritime disputes, principally through regular meetings to address concerns within the SCS. This optimism may be buttressed by a likely further defusing of bilateral tensions, with ASEAN’s agreement to negotiate a Code of Conduct with China without external involvement, made under the Philippines’ chairmanship.

This reconsidered evaluation of arbitration reveals a significant success in enabling a comprehensive and long-term solution to be achieved. These piecemeal but binding negotiations resolve targeted aspects of the dispute, by reducing the costs of relinquishing decision-making autonomy for both parties and through adequately addressing the interests of both parties, thus encouraging China to enter into a legal dispute resolution process which it would otherwise not have consented to. While these negotiations prolong the dispute resolution process, the complexity of the dispute has already made an expedited resolution impractical.

D Conclusion

Although China is unlikely to rescind its rejection of the award, and arbitration has not drastically changed China’s policy behaviour, the arbitration’s value is still significant in achieving some accountability, and resolving a diplomatic impasse through encouraging China towards bilateral cooperation with the Philippines.

III INTERNATIONAL CRIMINAL COURT & THE AFRICAN UNION: AL-BASHIR

A The Dispute

Following the Security Council’s referral of the situation in Darfur, the ICC Prosecutor requested an arrest warrant against Al-Bashir in 2008, with the ICC subsequently issuing warrants for Al-Bashir’s arrest in 2009 and 2010 for crimes against humanity, war crimes and genocide committed in Darfur. This has strained AU-ICC relations, with the AU Peace and Security Council immediately condemning the request, stressing its undermining of peace efforts in Darfur, and requesting the Security Council defer proceedings. This request, restated by the AU Assembly, was ultimately ignored. In response to the warrant, the AU has also ordered for all member-states to respect Al-Bashir’s immunity as a sitting Head of State and refuse to enforce the warrant.

Underlying ICC-AU tensions are perceived as bias against Africa, leading to fierce resistance by African states against the Court. Fuelling this perception are observations that only two sitting Heads of State indicted by the ICC are both African, the only two referrals by the UN Security Council concern, African situations, and the two exercises of the ICC Prosecutor’s proprio motu authority concern African situations.

B Accountability?

The ICC has clearly failed to hold Al-Bashir to account, with Al-Bashir still enjoying impunity almost nine years after his first arrest warrant. The AU’s order against enforcing the warrant has created a conflict for AU member-states between their obligations as AU member-states and as parties to the Rome Statute, with multiple African states deciding to comply with the AU and allow visits from Al-Bashir without arrest. The warrants have also failed to remove Al-Bashir, who has won two national elections since 2015.

While a commitment to the arrest of Al-Bashir was initially shared by more African states, including Botswana and Tanzania, the ICC’s indictment of Kenyan President Kenyatta reinforced the AU’s perception of the ICC as biased against Africa, leading to some African states which previously supported the ICC to ignore Al-Bashir’s warrant. Most notable is the reversal of South Africa’s previously stated clear commitment to arresting Al-Bashir ―which prevented Al-Bashir’s attendance of both President Zuma’s inauguration in 2009 and the 2010 World Cup. After Kenyatta’s indictment, the South African government ignored the ICC’s request for Al-Bashir’s arrest and extradition, inviting him to safely attend the 2015 AU summit in Pretoria and allowing him to leave untouched.

The ICC’s attempts to force compliance have been unsuccessful. Rulings on noncooperation by African states have not improved African cooperation ― with South Africa, Gambia, and Burundi instead signing treaties withdrawing from the Rome Statute.

C Looking forward

This failure alone should not be held as indicative of judicial settlement’s inherent ineffectiveness. Rather, it highlights that accountability should not be the sole objective sought, and a continued pursuit of judicial settlement must instead seek to improve cooperation.

1 ) Optimism?

Africa’s historical and continued support for the ICC remains a good cause for optimism in moving towards cooperation. African states have given overwhelming support to the ICC’s creation, their greatest in the creation of any global institution, aiming to achieve accountability for regional conflicts and gravest violations of human rights. Africa still remains the region with the most Rome Statute ratifications, with eight African ICC members maintaining their domestic legislation implementing Rome Statute obligations, and four additional African states ratifying the Rome Statute since Al-Bashir’s arrest warrant.

Moreover, the current African opposition is unlikely to seriously undermine the Court. A mass AU ICC withdrawal is unlikely to eventuate given a lack of consensus, with several formal reservations submitted to an AU proposal. Furthermore, Burundi remains the only African state fully withdraw from the ICC, likely owing to ongoing investigations by the ICC. African opposition is ultimately selective and confined to two of the nine African ICC investigations, with opposing states continuing to cooperate in line with their political interests, particularly where the ICC indicts African rebel leaders. The non-compliance of AU member-states may also strengthen international criminal law: Despite sustained criticism of the ICC, the AU consistently reiterates African commitments to combating impunity, and member-states continue to engage in interpreting and negotiating the Rome Statute instead of completely discarding it.

2) Solutions

AU criticisms of the ICC are largely invalid: most referrals to the Court were made by African governments themselves, and empirical evidence has not shown a derailing of peace efforts by the ICC but amelioration of conflict in Africa. However, with the Court’s effectiveness heavily dependent on state cooperation, the ICC must still pay greater attention to AU concerns, and implement steps towards successfully restoring cooperation from AU member-states. This demands a broadening of the Court’s main focus on achieving accountability, towards expanding and reinforcing its currently poor efforts to mollify the AU.

(a) Expanding Reach

The Court’s first investigation in a non-African nation, Georgia, has taken 14 out of its 15 years of existence to conduct. Moreover, the Office of the Prosecutor’s assertion that ‘gravity’ remains the ‘main criterion’ for ICC interventions, is not reflected in its lack of involvement beyond a preliminary investigation in far graver situations such as in Iraq or Syria, which demand ICC intervention.

While the ICC has withdrawn charges against Kenyatta and his officials, the Court must still take further steps to prosecute individuals from other regions to further dispel the myth of its bias against Africa, and take concrete action evidencing that Africa will not remain the Court’s ‘experimental farm’.

(b) Engaging Governments

The ICC should also consider engagement with African governments, which it is well positioned for given the continent is adequately represented in the Court, with five Africans among its current 18 judges, and a native Gambian, Fatou Bensouda, serving as the current Chief Prosecutor.

In engaging African governments, the ICC must remain conscious of the main concern underlying the AU’s opposition: Al-Bashir’s indictment is perceived as a ‘dangerous (precedence) of indicting a sitting Head of State’, and threatens African leaders’ selfpreservation and political survival, many of whom have gained power through armed coup, and therefore fear losing power through criminal accountability. This fear is manifested in the AU’s 2014 amendment of the statute of its African Court of Justice and Human Rights, explicitly preventing the Court from prosecuting sitting Heads of State. To assuage these concerns, the Office of the Prosecutor should therefore issue Policy Papers establishing how its activities will enable peacemaking, and detailing how existing misperceptions across Africa may be rectified and remedied.

As an extension to engagement, the ICC must also continue to manage non-compliance diplomatically, as it has done with South Africa’s non-compliance, choosing not to refer South Africa’s non-compliance to the Security Council as resulting sanctions would have exacerbated ICC-AU tensions and worsened prospects for cooperation.

(c) Engaging Civil Society

Furthermore, the ICC may engage with African civil society, as the AU’s current opposition remains political rather than social. African civil society has been largely supportive of the ICC’s efforts, which successfully mobilised domestic courts to order for Al-Bashir’s arrest, and successfully blocked withdrawals from the ICC. Most importantly, civil society has successfully pressured the South African government to reverse its initial commitment to the AU’s decision against ICC cooperation, leading to a government statement in 2009 clarifying its commitment to arresting Al-Bashir.

The ICC may thus engage civil society to remind African governments of their Rome Statue obligations and the importance of cooperation in preventing impunity. Additionally, civil society may be engaged to call for domestic implementation of the Rome Statue, which promotes cooperation by reducing the distance between the state’s goals and that of international criminal justice. By emulating efforts in Kenya and South Africa, civil society can be effectively engaged to contribute towards achieving African cooperation.

D Conclusion

The ICC’s current failure therefore reiterates that accountability should neither be the defining metric in assessing adjudication, nor its sole objective.

IV CONCLUSION

The preceding discussion highlights that IDR mechanisms do not necessarily fail in holding the ‘big’ fish accountable, while ‘small fish’ may still elude capture. Moreover, conceptualising IDR mechanisms as tools for achieving a binding settlement obscures their full effect on state behaviour, and accountability should not be used as the defining metric in binary evaluations of their effectiveness. Instead, IDR mechanisms must be evaluated with reference to their purpose –the achievement of peaceful dispute settlement. Failures to achieve complete accountability should not immediately condemn IDR mechanisms as ineffectual, but highlight areas for improvement. Ultimately, an obsession over a net’s holes when assessing IDR mechanisms has little utility and should be replaced by efforts to mend and reinforce approaches.