Sunday, March 06, 2005

ICJ Watch: Indonesia v. Malaysia v. Philippines

Territorial squabbling continues in Southeast Asia as the Indonesian government announced it would NOT bring its simmering dispute with Malaysia over offshore undersea development rights to the International Court of Justice (where it previously lost a territorial case in 2002). It also announced that warships sent to enforce Indonesian claims of sovereignty would remain and that Malaysian airplanes were violating Indonesian airspace. Tensions continue to rise and it looks like the ICJ will not be called in to settle this dispute.

Meanwhile, the Phillippines announced that it WOULD bring its claim to the island of Sabah (formerly North Borneo) to the ICJ. Sabah is currently a part of Malaysia, but apparently the Phillippines has a claim based, I think, upon the fact that Sabah was owned by the Sultanate of Sulu and leased to the British East India Company, which was eventually succeeded by the government of Malaysia. The Sultanate appears to be a protectorate of the Phillippines that had granted that country the right to pursue the Sabah claim on its behalf. Malaysia actually still pays a lease to the Sultanate.

None of the three countries has recognized the compulsory jurisdiction of the ICJ, so onemight wonder, then, why any of these countries would ever go to the ICJ if they don't have to.

This is a complex and somewhat controversial question that is currently the subject of an important academic discussion between Professors Eric Posner and John Yoo on one side and Professors Laurence Helfer and Anne Marie Slaughter on the other. Posner and Yoo suggest that states will generally agree to international adjudication only when they feel like they have some control over the process, such as the power to appoint the arbitrator. Helfer and Slaughter respond that states will agree to give an international court binding jurisdiction to enhance the credibility of their commitments to the other states.

In these territorial and sea disputes, what is odd is that the states (like the Phillippines) might agree to give the ICJ jurisdiction as opposed to creating their own arbitration tribunal (which they could control better, as the Posner/Yoo theory might predict). States in this instance appear to be choosing an independent tribunal that they can't control. This doesn't necessarily support the Helfer/Slaughter view either because it is hard to see why agreeing to the ICJ after the dispute has already arisen will enhance the credibility of their commitment anymore then agreeing to arbitration would do so.

It may be that the ICJ has some expertise in these sorts of disputes and its existence as a stand-alone tribunal makes it a known quantity. The combination of expertise, and perhaps cost savings, might be one reason why the ICJ might continue to use international courts. But its use is likely to be sparing, as Indonesia's attitude in the current dispute suggests. This may end up being a situation where international law and institutions will have to yield to diplomacy in these disputes.

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