When I mention my profession, the first question people usually ask is how international law is enforced.

As a matter of fact, international law has a relatively weak enforcement mechanism. While some of the newer norms are equipped with stronger mechanisms of enforcement, such as trade or investment), there are other norms that are characterized by the lack or absence of enforcement mechanism.

One thing people usually miss here, however, is that states abide by judgments of international courts at an extremely high rate. The compliance rate here is higher than that from municipal jurisdictions. Of course, we remember instances of noncompliance, but they are indeed exceptions of rare outliers. Perhaps compliance does not have newsworthiness but noncompliance does, so what is etched in our memories is usually instances of noncompliance.

There are many reasons behind the high compliance rate of international court decisions. One major reason is that states are considerably “peer-sensitive.” States behave as if they are entitled to choose whatever policies they deem appropriate, but in fact they exercise the utmost care as to how other states view their policy choices. When a judgment is rendered by an international court, states feel compelled to abide by it even if enforcement mechanism is weak or even absent. A state might muster the courage to tell other peers that it will ignore an adverse ruling -- sometimes it happens, but it is extremely rare.

Attention is currently on the Permanent Court of Arbitration in The Hague, Netherlands, as the international court is scheduled to issue its final decision on July 12 on a highly sensitive and complex dispute between the Philippines and China. The legal proceeding was initiated in 2013 by Manila concerning various maritime and territorial issues in the South China Sea. China’s objection to the jurisdiction of the court was dismissed and it has subsequently boycotted the proceeding. The PCA proceeded and completed its deliberation nonetheless.

Given the volatility and complexity surrounding the South China Sea, the upcoming award from the PCA, regardless of which side prevails, will mark a turning point for the maritime and territorial disputes in the region. The award will rule on the legal status of the geographical features and maritime zones in the region, including the legality of China’s “nine-dashed line.” 

So, while this case just handles the disputes between Manila and Beijing, assessments of legal and factual issues will directly affect the interest of other states vying for maritime and territorial jurisdiction in the South China Sea.

As the award issuance day approaches, the lack of enforcement mechanism of the PCA proceeding is being highlighted. Speculation is that the losing party may declare the decision legally erroneous and refuse to comply. Quite frankly, as long as an enforcement mechanism is lacking in the PCA proceeding, twisting the arms of a noncomplying party is neither feasible nor realistic.

Thus, noncompliance or partial compliance is certainly a possibility. Nonetheless, considering the historical record of faithful implementation of international court judgments, it is still much more likely than not that a losing party is going to comply with the award.

A losing party or two parties in the case of a partial or split judgment may declare noncompliance initially, but such declaration may be employed for political or strategic purposes, and compliance will come slowly and gradually. Almost all of the time countries end up abiding by the decisions of the courts at the end of the day, because they know that doing so serves to protect their long-term interest.

That conventional logic, however, would work only if the parties perceive this dispute as one of many outstanding disputes and address it as business as usual. If parties attach historic significance and treat it as a strategic turning point as they seem to now, it may take longer, with fierce confrontation, before the final resolution of the disputes in the South China Sea.

By Lee Jae-min

Lee Jae-min is a professor of law at Seoul National University. -- Ed.