Friday, March 11, 2005

Why a Little Anti-Internationalism Can Be a Good Thing

President Bush’s withdrawal from the Vienna Convention’s Optional Protocol granting the ICJ jurisdiction has startled many supporters of greater internationalism, but in the long run, I do not think this withdrawal is likely to be more than a blip as a political matter. Bigger battles are afoot.

As I noted here, Congress will likely vote this year on whether or not to withdraw from the World Trade Organization. Although this vote is likely to fail, it may serve as a symbolic rallying point for the real target: the Dominican Republic - Central American Free Trade Agreement (DR-CAFTA). Leftish groups are already massing support for opposition, and, more significantly, there is evidence that major agricultural interests are going to oppose DR-CAFTA, despite energetic Bush Administration lobbying for their support, because they are already feeling pressured by WTO judgments threatening agricultural subsidies. This is likely to be a real fight and it will likely reveal an interesting divide between liberal internationalists who value all forms of international cooperation and liberals who only support those forms of international cooperation whose policy goals they support.

On the other side, conservative groups are aggressively preparing to block ratification of the Law of the Sea Treaty. The Senate’s Foreign Relations Committee unanimously approved this treaty last year but no date for a vote in the Senate has yet been set, even though Secretary of State Rice reiterated the Administration’s support for the treaty during her confirmation hearings. Opposition to the Law of the Sea Treaty is, interestingly, largely ideological. No major industry groups oppose this treaty, even oil and mining companies who might be affected by the treaty’s regulations of deep seabeds. Rather, opposition has largely been driven by fears that ratification would result in the “loss of sovereignty” to the United Nations. Yet this opposition is very powerful and may yet prevent the treaty from coming up for a vote.

I’m predisposed to support both DR-CAFTA and the Law of the Sea Treaty (although I have greater concerns over the latter) because I am generally in favor of the policy benefits of joining both treaty systems. Still, I think this sort of frank and open political debate over the merits of particular international treaty systems is a very healthy and necessary.

Thursday, March 10, 2005

Agent Orange Shocker: Weinstein Dismisses Lawsuit

I suggested last week that the Vietnamese Agent Orange lawsuit against U.S. chemical companies had a good chance of success because the presiding judge was the legendary Jack Weinstein of Brooklyn. Boy was I wrong.

Judge Weinstein dismissed the lawsuit today only 3 days after hearing arguments in the case finding that the plaintiffs had no basis for their claims under Vietnamese, New York, or international law. The stunning 233 page ruling appears to reject all of the plaintiffs' claims, including their interesting but somewhat radical claims that U.S. use of Agent Orange violated customary international laws of the war and various treaties.

The decision is, of course, appealable. But don't hold your breath. If the plaintiffs can't convince Judge Weinstein, who can they convince?

Wednesday, March 09, 2005

U.S. Withdraws From ICJ Jurisdiction Over Consular Relations Claims

I noted rumors/reports of this below, and now the New York Times confirms that the U.S. has withdrawn from the Optional Protocol to the Vienna Convention on Consular Relations. The Optional Protocol is the provision granting the International Court of Justice compulsory jurisdiction over disputes under the consular relations treaty and the basis for Mexico's (and Germany's) applications to the ICJ. If the U.S. has indeed legally withdrawn from the Optional Protocol, then the ICJ can no longer hear future cases brought by other countries with foreign nationals similarly situated to Mexico's nationals. (Update: Marty Lederman, as usual, was first to notice this article and the first to comment. Michael Froomkin has the text of the withdrawal and more comments about the timing of the withdrawal)

A couple of insta-observations:

(1) The ICJ might find that the U.S. withdrawal itself was not in conformity with international law. In particular, the Vienna Convention on the Law of Treaties (if it is accepted as customary international law) seems to prevent countries from withdrawing from a treaty unless that treaty specifies that withdrawal is permitted. Even if withdrawal is permitted (because the parties intended to allow withdrawals), the U.S. might be obligated to give at least 12 months notice before withdrawing. If so, other countries who have nationals facing execution in the U.S. could (and very well might) file cases in the next 12 months seeking to get an ICJ judgment before the U.S. government's withdrawal takes effect. More work for my former colleagues at Debevoise & Plimpton (who currently represent Medellin and also worked for earlier ICJ cases involving Mexico and Paraguay)...

(2) A U.S. court might find that the President lacks the authority to unilaterally withdraw from a treaty and that he must get senatorial consent to any withdrawal. This has never been definitively decided by any court with the Supreme Court avoiding the question back in 1979 with several justices calling this a "political question." So, assuming the ICJ is willing to continue to hear cases (maybe for just 12 months), this case might indeed come back to U.S. courts where the question of the legality of the President's withdrawal could be considered again. I think if it is considered, the U.S. court will likely find that the President can indeed withdrawal unilaterally as recent practice (remember that ABM treaty?) seems to confirm.

(3) The U.S. is still party to similar Optional Protocols granting the ICJ jurisdiction over disputes involving the Vienna Convention on Diplomatic Relations and about 19 Friendship, Commerce, and Navigation Treaties. Assuming the U.S. withdrawal is effective, these appear to be the only self-executing treaties over which the ICJ continues to maintain binding jurisdiction over the United States. The United States already has withdrawn from the ICJ's general compulsory jurisdiction. If so, the ICJ's relevance (at least to the United States) will continue to fade and decline.

(4) My former colleague Peter Spiro has an amusing reaction in the NYT. "It's a sore-loser kind of move. If we can't win, we're not going to play." This is a fair point. On the other hand, when other countries have had real interests at stake, many of them have also withdrawn or limited the ICJ's jurisdiction. See, e.g., France (Nuclear Tests) and Australia (seabed boundaries with East Timor). So maybe we are sore losers. But so is everyone else...

Back to Texas: Medellin Moves to Stay Supreme Court Proceedings

Medellin's attorneys have filed a motion to stay further proceedings in the Supreme Court on the domestic effect of the ICJ's judgment in Avena "while Petitioner pursues his remedies in Texas court, as contemplated by the President’s determination of February 28, 2005, implementing the judgment in [Avena] and the position taken by the United States in this Court." (Thanks to Roger Alford for the heads up).

Following my suggestion last week (OK, they decided on their own, but let me try to take credit for their choice anyway) Medellin's lawyers are declaring victory and quitting the field. This is smart, not only because they will likely get the hearing in Texas court that they want, but they probably would have lost in their attempt to have the Supreme Court enforce this judgment (due to the Court's lack of appellate jurisdiction and for various other reasons I discuss here). I predict the Court will grant this motion, with the only question being whether the motion is stayed or actually dismissed.

Is It Unlawful to Breach a Treaty?

A while back, Marty Lederman had posted a comment asking some probing questions on my post on the legality of the current Iraq War and on the bombing of Serbia by NATO during the Kosovo conflict (both available here). While a variety of other issues have come up in the last week, I didn’t want to let his questions go unanswered.

I want to start with the end of Marty’s comment, which focuses on the main question he had about my post:

Because there are serious ramifications for breach of a treaty, we ought to enact breaching legislation only rarely, and only after very solemn and careful deliberation. And in accord with the Charming Betsy canon, statutes should be construed, wherever possible, to be consistent with U.S. treaty obligations. But in what sense is a treaty-breaching statute illegal under U.S. law -- including the Supremacy Clause?

Actually, I think Marty and I are basically in agreement: I am not arguing that a later statute that would cause a treaty breach would be illegal under U.S. law; I only argue that U.S. actions breaching a treaty would be illegal under international law.

Marty describes the situation in this way:

Congress *often* enacts "last in time" statutes that effectively violate treaties, or that breach federal contracts, or that contradict earlier statutes. In many such cases the federal government must, of course, suffer the consequences of the change in law, such as (sometimes) paying for contract breaches, or suffering international sanctions, etc. But we rarely characterize the new statute as *unlawful* simply because it violates a previous promise that we have made.

If the hypothesized domestic statute caused a breach of international legal obligations under a previous treaty then, in the sphere of international law the U.S. is acting in a manner that would be unlawful. (I am assuming here that in passing the later statute the US did not denounce or terminate the treaty by accepted procedures.) Or, perhaps more technically, U.S. actions would give rise to a claim of state responsibility.

Marty described the situation as akin to a contract breach or to passing a later statute that trumps an earlier statute. I want to walk through some of the implications of these analogies in relation to the domestic and international roles of treaties.

The contract analogy has often been used to describe some treaties, such as certain types of trade agreements. Other treaties, due to their subject matter, complexity, and/or the rights and obligations they describe, are cosnsidered to be less like contracts and more like statutes (or even constitutions); consider the U.N. Charter or the WTO Agreements.

In the end, though, treaties aren’t contracts, or statutes, or constitutions. Treaties are their own species and the various analogies that we use to describe them are only useful up to the point that they obscure rather than enlighten. (If anyone wants to read more on treaty breaches and analogies to domestic texts such as statutes and contracts, I have an article entitled “Resolving Treaty Conflicts” coming out this Spring in the George Washington International Law Review on this topic.)

So while Marty says that the later statute may cause a contract breach (which is not illegal) or may simply supercede an earlier statute (which is not illegal domestically, it is merely a change in law), I don’t think either analogy is applicable in the international arena for the fact pattern we are discussing. By breaching a treaty, the U.S. isn’t merely breaking a contract. Domestic U.S. jurisprudence allows for parties to breach contracts without making such actions illegal because contracts are merely private methods for parties to order their affairs within the confines of an overarching legal system. Treaties, on the other hand, are recognized as a key source of law in the international legal system. While contracts are within a domestic legal system, treaties are a large part of the international legal system, itself. Thus, in domestic law, we accept the “efficient breach” of contracts (breaches that lead to economically efficient results), but in the international system, the default rule is pacta sunt servanda, “the agreement shall be observed.”

Similarly, while a later U.S. statute may simply supercede an earlier treaty for domestic purposes, this analogy breaks down when applied internationally. While the treaty is an instrument of international and possibly domestic law-making, the statute is an instrument of only domestic law-making. Thus, regardless of the domestic legal change caused by the later statute, at the international level we do not have a change of law but a unilateral breach giving rise to state responsibility.

So, in sum, a later domestic statute would countrol over an earlier treaty and be perfectly legal domestically. If, however, the U.S. is consequently breaching its international obligations, then the U.S. behavior would be seen as unlawful in regards to its international obligations.

(And, by the way, there's a whole other set of issues concerning whether a breach would require actual state practice in contravention of a treaty--enforcing the later in time statute--or whether the mere act of enacting the statute (whose enforcement would be a breach) would itself be an anticipatory breach. If that interests you, I would refer you to my forthcoming article mentioned above...)

U.S. Withdraws From Vienna Convention Optional Protocol?

There are rumors and/or reports that the U.S. will withdraw today from the Optional Protocol to the Vienna Convention for Consular Relations. If true, this would probably bring to an end the litigation before the International Court of Justice on foreign nationals' rights who are facing death sentences in the United States. But it would raise lots of legal questions.

I will post more as soon as I get confirmation, although I've heard some intimations from a variety of sources that this might happen.

Indictment of the Prime Minister of Kosovo by the Yugoslav War Crimes Tribunal

The International Criminal Tribunal for Yugoslavia has indicted the Prime Minister of Kosovo, Ramush Haradinaj. Such a move had been rumored and Haradinaj had said that he would resign from office if indicted. On Tuesday he did just that. Although the substance of the indictment has not yet been made public; it is understood to stem from alleged incidents in 1998-1999, when Haradinaj was a commander in the Kosovo Liberation Army. He maintains his innocence of any charges and has gone to the Hague to cooperate with the tribunal.

In the State Department's press briefing on Tuesday, the State Department spokesperson said that

[t]he United States welcomes Mr. Haradinaj's stated readiness to go to The Hague tomorrow. We call upon the people of Kosovo to refrain from any violence and we reiterate the importance of continuing to work on the standards for Kosovo. Adhering to the rule of law is a key element of the standards. We continue to support the tribunal. We call upon all parties in Kosovo and throughout the region to cooperate fully with the tribunal. This includes apprehending and transferring all fugitive indictees to The Hague.

The UN Special Representative had a similar statement here.

This indictment may prove to be a key test for the ICTY and Kosovo, both. The ICTY has shown that it is willing to prosecute people from both sides of the the Kosovar conflict. More than that, by indicting one of the leaders of the autonomous region of Kosovo, it is facing head-on the problem as to whether tribunals help or impede lasting political settlements by making political leaders face possible prosecutions (and thus giving them no incentive to make peace if they would go to jail anyway). So far, at least, the nightmare scenario hasn't happened: Haradinaj resigned, urged Kosovars to remain calm, and has willingly left for the Hague (contrast this with the fugitive status of Ratko Mladic and Radovan Karadzic). As one journalist in Kosovo reported today, while he saw some people out buying flowers for International Women's Day, he didn't see anyone gathering stones for street protests over the indictment.

The reason for this is probably in large part due to the fact that this is a turning point not only for the ICTY, but Kosovo as well. Kosovo is looking for possible independence. The road to independence does not pass through defiance to the ICTY, Europe, and America. In order to set down a marker for the autonomy that they already have and press forward towards independence, Kosovo needs to show key players (especially the European Union and the U.S.) that it will be a good citizen in the community of states, if it achieves statehood. Complying with an ICTY indictment is a good way to signal this (it also explains, incidentally, why Serbia has been complying with the ICTY in its run-up towards talks for it accession into the E.U.).

Hopefully the incentives of being a "good citizen" will outweigh the disincentives. How these issues unfold will point to the possibilities for lasting peace in the region.

Tuesday, March 08, 2005

Texas' Last Stand on Medellin

As the major media finally begins to notice the Bush Administration's decision last week to order state courts to comply with the ICJ's ruling in Avena, Texas may be gearing up for a last stand in the ongoing Medellin saga.

I stand by my prediction last week that the Bush Administration's intervention on the side of the ICJ will almost certainly convince the Court to dismiss Medellin's current appeal. The case would probably be refiled in Texas state court. I also doubted Texas would continue to fight an ICJ-mandated hearing in such a court, especially after someone pointed out to me that Texas' own brief (pp. 46-47) seems to concede that an executive order could require it to comply with the ICJ order. (UPDATE: Marty Lederman points out that this language is a bit cryptic, and that Texas' Brief on p. 7 says that the "President could sign an Executive Order creating some form of executive review" which doesn't necessarily mean it concedes such an order could require state courts to provide a hearing in the way the President wants.)

But even after this admission, this report suggests Texas has changed its position and will contest the authority of the President to order it to comply with the ICJ order. According to its spokesman,

[Texas] respectfully believe[s] the executive determination exceeds the constitutional bounds for federal authority. The State of Texas believes no international court supersedes the laws of Texas or the laws of the United States.

This statement (thanks to Carlos Vazquez for the heads up) suggests two lines of resistance (further suggested by Lederman's pointer): (1) that the Bush Administration "memorandum" is not an official executive order and has limited authority; (2) the ICJ's order cannot authorize the U.S. executive branch to override inconsistent state law.

Both of these arguments are probably loser arguments, in my view. I'm sympathetic, but I'm fairly sure they will lose before this Court. Why? Because Texas would have to get the Supreme Court to reconsider some of its recent precedent that seemed to authorize the President to preempt state law based on declarations of national policy (American Insurance Association v. Garamendi), which seems unlikely. Even if the Court wants to limit Garamendi, the power of the executive branch to exercise its power to interpret and implement treaty obligations protecting foreign nationals is not likely to be the place where they will do so. I'm not thrilled with the idea that the President can unilaterally override state law through executive orders, but I do think it is better than the alternatives (e.g. judicial enforcement). My own scholarship suggests the use of executive orders in this way is virtually unprecedented. But it may be the wave of the future.

I am a bit surprised that Texas is going to continue to fight this because now it will not only have to fight Medellin's attorneys, Mexico's attorneys, but now also the attorneys for the U.S. government. This may not quite be a legal version of the Alamo, but it's getting close.

Monday, March 07, 2005

John Bolton: Neocon or Realist. Does It Matter?

I agree that Bolton is a strange appointment, and not just because he doesn't appear to like the U.N. very much. It is also strange because if Bolton hates the U.N. so much and thinks it is useless, it isn't likely he will accomplish very much in his new job. In other words, this appointment almost suggests Bolton is being kicked upstairs so that Secretary of State Rice can keep control of the State Department to herself.

I do disagree with Peggy's characterization of Bolton as a "neocon" in the sense that I don't see his views as being that different, as a theoretical matter, from the famously realist Rice (or her chief policy guru Stephen Krasner). Maybe a realist would be less aggressive about promoting democracy or liberal values, but both realists and neocons share an increasingly severe skepticism of international law and institutions. Compare this quote from John Bolton, the supposed "neocon", as documented in Slate:

It is a big mistake for us to grant any validity to international law even when it may seem in our short-term interest to do so—because, over the long term, the goal of those who think that international law really means anything are those who want to constrain the United States.

Now recall this quote from uber-realist Stephan Krasner:

But the deepest problem with the ICC and with other efforts, like universal jurisdiction, is that international politics is not something that you can deal with adequately using judicial reasoning. Judicial reasoning has to be based essentially on absolute rules, or at least more or less on absolute rules. It has to be deontological or Kantian. You have to have a set of rules and you have to honor the rules.
But in the international level, that kind of thinking is utterly irresponsible, because the critical issue at the international level is how you can maintain order, ideally have justice, and save lives.

I think that both realists and neocons share is this skepticism toward international law and institutions. Indeed, one might argue this skepticism is a glue that holds the foreign policy team of this administration together.

What divides the neocons and realists are their foreign policy goals. Neocons (like Paul Wolfowitz) are interested in spreading liberal values and ideals (their only difference with most liberal internationalists is over methods, not goals). Realists are more hard-nosed and tend to talk a lot about "national interest". What is odd about critics of the Bush team's foreign policy is that the liberal internationalists critics seem to have the greatest scorn for the neocons, with whom they actually share more common values and goals

2004 State Department Human Rights Report: Early Global Reactions

Last Monday, the State Department released its 2004 Report on Human Rights conditions around the world. The report has been around since the Carter administration, when Congress began requiring human rights reporting as a centerpiece of U.S. foreign policy. Since the beginning, the report has been criticized globally as reflecting an American tendency to subject other countries to a higher degree of scrutiny than it applies to its own behavior. Given the fact that one of the biggest human rights news stories of 2004 was abuse of detainees in US custody, reaction in the foreign press to the 2004 report is more strident on this point of "American exceptionalism" than ever. For example, Russia has accused the US of "double standards" and China has issued its own human rights counter-report detailing US violations.

Despite the obvious danger of being labeled hypocritical, the report is still the most widely read of international human rights reporting -- particularly by the governments who find themselves criticized for falling short of international norms and by the human rights activists for whom the report offers public and official acknowledgement of conditions they are working to alleviate. Indeed, since the release of the report, governments around the world have gone out of their way to go on the record about the report (which means in most cases they have at least read the report). Reactions have ranged from outright denial to statements welcoming the information and discussion of problems raised in the report. Here are some samples from around the world:

Armenia says report is biased, but can provide guidance on civil rights issues;

North Korea dismisses report;

Ethiopia says report based on "lies";

Slovakia says US report is overall "balanced";

Pakistan calls US report "baseless";

Bangladesh says report is "one-sided"; and

South Africa, Cyprus and Venezuela reject the report.

What makes this years report particularly sensitive is the condemnation of practices in countries to which the US has been sending detainees for interrogation. (See, for example, this discussion of torture practices in Egypt, Saudi Arabia and Tunisia outlined in the State Department report.) Great attention is also being paid to the report's account of human rights abuses by the interim government in Iraq.

But how do these reports get written? Are they at all reliable? Back when I was a Foreign Service Officer, I served as human rights officer during one of my tours. It is in the foreign country where almost all the information is collected by FSOs on the ground. Here is an explanation of the process from the introduction of the 2004 report:

Our embassies, which prepared the initial drafts of the reports, gathered information throughout the year from a variety of sources across the political
spectrum, including government officials, jurists, armed forces sources, journalists, human rights monitors, academics, and labor activists. This information-gathering can be hazardous, and U.S. Foreign Service Officers regularly go to great lengths, under trying and sometimes dangerous conditions, to investigate reports of human rights abuse, monitor elections, and come to the aid of individuals at risk, such as political dissidents and human rights defenders whose rights are threatened by their governments.

Reliability and impact are not just measured by the sources and reporting methods, but also by the follow-up scrutiny of the report by governments and NGOs. The release of the report marks the beginning of an annual round of public diplomacy by US representatives overseas and provides a useful tool for engaging the governments and popular opinion on these issues. (See this discussion of the US Embassy in Lagos framing of the report as part of an "educational" process.)

It is clearly going to be more difficult than usual for the State Department to be taken seriously in its pursuit of human rights protection, when, as was reported in the NY Times yesterday, other elements of the US government are engaging in practices that implicitly (or explicitly) exploit the bad practices of other governments. And I don't envy the work of human rights officers at US embassies around the world over the next few weeks. But sustained engagement with the rest of the world on these issues has marked US foreign policy since the late 1970s as different from the traditional diplomacy of other states. Consistency, the danger of politicization of the reporting process and charges of hypocrisy have always been a problem. That is why we should be sure that our criticisms of other states is matched with a shift in policies governing rendition and other programs and where policy change is resisted, human rights activists continue to pursue judicial remedies.

John Bolton Nominated to be UN Ambassador

When Bob Zoellick was named Deputy Secretary of State, it was largely viewed as a triumph of the internationalist "realists" over the unilateralist "neocons" in the Bush State Department. That conclusion may have been somewhat premature. Today it was announced that John Bolton, a prominent neocon and current undersecretary of state for arms control and international security, will be nominated as US Ambassador to the United Nations. While Bolton solidified his reputation as opposing many multilateral institutional arrangements (most notably the ICC, which he helped make into US policy with the "unsigning" of the Rome Treaty), he had some success in helping the Bush I administration build multilateral support for the first Gulf War when he was assistant secretary for international organizations under James Baker. But he is by style and ideology no John Danforth. (He is reported to have once uttered, "If the UN building in NY lost 10 stories, it wouldn't make a bit of difference.") His confirmation hearings should offer an interesting opportunity to find out where the second Bush administration places the UN and its institutions now that it is, in the words of Secretary Rice, "time for diplomacy."

Imposing a Time-Limit on Alien Tort Statute Claims

El Salvador watchdog (or is it "watchblog"?) Tim Muth notes that the U.S. Court of Appeals for the Eleventh Circuit reversed a $54 million judgment against 2 Salvadoran generals for human rights violations during the 1980s. Those generals now live in the U.S. and were sued by their victims under that ubiquitous Alien Tort Statute.

Courts have generally held that Alien Tort Statute claims are subject to a 10-year statute of limitations. The same issue will likely defeat the plaintiffs in the Agent Orange litigation because many of the alleged injuries were discovered or should have been discovered more than 10 years ago. There are obvious reasons for imposing such a time limitation on ATS claims just like statutes of limitations are imposed on other claims. Such limitations may be "equitably tolled", meaning the court will stop the Statute of Limitations ("SOL") clock from running due to special circumstances that prevent the plaintiff from bringing the claim.

Although imposing the SOL in any particular Alien Tort Statute case may seem harsh, it is particularly important to enforce the SOL in such cases because ATS claims in theory could be brought by any foreign plaintiff for any international law violation that has ever occurred in history. At some point, the even the U.S. court system must shut is door to even the worthiest claims.

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.