Of the three possible scenarios – military action, political negotiations or international dispute resolution – for resolving the dispute over islands and exclusive economic zones (EEZs) in East Asia Kristen Boon offers, I favor the third. The lack of a decent legal precedent seemed to relegate the world to a spectacle of dumb nationalism in both official government pronouncement and on the internet. There is now a precedent.
Although parties to the UN Law of the Sea Convention (and most of the relevant contenders in this dispute are parties to UNCLOS) are required to submit their disputes to one of four methods of compulsory dispute resolution pursuant to Article 298, international jurisdiction in this case is complex because of the number of countries potentially involved, the patchwork of treaty commitments and reservations over dispute resolution mechanisms and law of the sea matters, and the “cultural” hesitance of some of the key players to submit the dispute to an international tribunal. (OJ readers, please chime in on these complexities!)
Nonetheless I think the November 19, 2012 decision of the International Court of Justice (ICJ) in the case concerning the Territorial and Maritime Dispute (Nicaragua v. Colombia) should give the parties to the S/D dispute confidence in the role of international dispute resolution mechanisms.
In that decision, the ICJ found that Colombia has sovereignty over disputed Caribbean islands in the San Andres Archipelago. The Court also found Nicaragua has sovereignty over a disputed maritime area of approximately 75,000 square kilometers. In essence, the Court tried to reach an equitable decision by giving one country sovereignty over the islands and another sovereignty over the marine area. Although the judgment was initially met with anger in Colombia, even leading it to denounce the Bogota pact which gave the ICJ jurisdiction in the first place, a few days later Bolivia suggested that it might submit a brewing dispute with Chile to the ICJ, suggesting that the authority of the Court has not been diminished in the region.
Ironically, I take the fact that China and Japan are still submitting claims to the International Court of Justice as a sign that both states view sleep-inducing legal briefs as a viable way to resolve conflict, even if their citizens are willing to lop off their own fingers or threaten war on the comment boards. Law is the best way to bore people, and hopefully the latest scandal among actors or fad will distract the emotionally unhinged long enough to find a solution. Isn’t that what law is for?