Listed below are the three posts that require a response:
What are the considerations for sovereign states in joining international legal courts and regimes? How does participation in the International Court of Justice (ICJ) and regimes such as the Law of the Sea Treaty (LOST) benefit states in terms of dispute resolution? Do all states benefit equally? (or, does size matter?)
The implications for sovereign states joining international legal courts and regimes are much the same as they are in joining any influential international body. The pros lie mostly in the public international opinion. When a state is seen to be cooperating and actively involving itself in productive international dispute resolution, whether it is oversight, implication, or following a ruling, it can be seen as them being a team player in the IC. However, some cons for joining an international body are the inherent biases, whether by one member or by an entire group that are sometimes difficult to mitigate. Take the territorial dispute of the South China Sea. If the council that is supposed to be drawing up the lines favors China, or has Chinese members, then it would at least be perceived to come up with a skewed result. Other countries like Vietnam and Brunei would potentially not get fair consideration. Again, these are some issues that come with any international body since it is made up of state representatives. There is really no way to completely solve this issue, but awareness helps. Other issues that states face when deciding whether to join and international court or regime, is whether or not the laws of their own country conflict or mesh with those of the other members and the governing body of the group. This is especially important in an international court where the members will decide the seriousness of an offense. If some members think an infraction is less serious than others do, or vice versa, it may be difficult to resolve the issue and pass a fair judgement.
According to the readings, the Law of the Sea has greatly benefited China in its dispute over territorial waters and islands (Dutton, 2011, p.7). However, issues continue to arise since the surrounding countries also lay claim to these areas (Dutton, 2011, p.7). The benefit, of course, is the legal backing. It seems like a substantially unfair claim. But, China is the big player in the situation, and maybe size does matter. Economic size and economic influence. China is a far front runner in the international trade arena as compared to the countries who are also claiming these areas like Vietnam, Taiwan and Brunei. If China even hinted at retaliating negatively toward its trading partners, many of whom are also members of the UN, following an unfavorable outcome to this dispute, that would have to be put on the table as a factor for consideration.
The major considerations for sovereign nations to join an international legal court or regime are 1) participation in and formation of a global legal regime with equal representation and 2) an international body that can make rulings over many international disputes covering many fields of law. The international legal bodies are designed to ensure a global legal regime is present with representation to form a court that is “truly global in character” (Ogbodo 2012, 96). Furthermore, these bodies generally possess the ability to address many fields of law, such as territorial boundary issues, maritime delimitation, and breach of treaty. (Thirlway 2016). For example, the ICJ presided over a case in 2014 between Australia and Japan regarding whaling in the Antarctic and in the same year a dispute between Peru and Chile regarding Pacific Ocean maritime boundaries (Naranjo 2016).
In addition to access to the International Court of Justice as a United Nations member state, signing a treaty such as the UN Convention on the Law of the Sea (UNCLOS) gives a state additional assistance in areas that are not covered by sovereignty, such as those governing the exclusive economic zones (EEZs) and continental shelf (Dutton 2011, 47). Issues such as environmental disputes and boundary disputes are, on the other hand dealt with through the ICJ because they involve issues of sovereignty (Naranjo 2016). Therefore, participation in the ICJ AND being a signatory member of the UNCLOS treaty allows a state to have more protections afforded to them if the need arises – protection over sovereignty as well as jurisdiction. In other words, participation in the ICJ and regimes (such as the UNCLOS) provide access to jurisdiction for dispute settlement that may otherwise be unavailable. In the case of bi-lateral or multi-lateral treaties, when a dispute arises from such a treaty, one party may act unilaterally and bring their dispute claim to the ICJ (or the court under which the treaty has listed jurisdiction) for judgment and ruling (Ogbodo 2012, 102). This has occurred on many occasions in the South China Sea (SCS) when states have brought forth dispute claims against China and China has not appeared at the court or provided written statements For example, the Philippines submitted a dispute with China to the ICJ in 2014 and China refused to participate in the judicial proceedings (Geib and Pfaff 2016, 67). Although a party may unilaterally approach the ICJ or other legal instruments in the case of a breach of treaty, refusal to participate leads to weakened arbitration possibilities (Boon 2014, 492). However, with special regard to the UNCLOS, this treaty does not cover land sovereignty claims as it is only concerned with the interactions of and between member states in territorial and non-territorial waters (Beckman 2013, 143). Therefore, a state must understand its treaties and its memberships to fully understand the legal rights that it does or does not have.
The question of whether all states benefit equally is a much tougher one to answer. In the case of the ICJ, the role of the UN Security Council permanent members has been called into question – it may have a disproportionate influence on who is elected and reelected to the bench and can otherwise undermine the impartiality of the ICJ due to their large amount of power they weild (think of their veto power) (Ogbodo 2012, 107); however, small states still retain the right to name ad hoc judges in order to have a judge that is of the same nationality residing on the case, which allows them some level of power. However, this right alone is not enough to create equality in the ICJ. Furthermore, there is evidence that the courts in general are not transparent and therefore, the likelihood of nominating “insider candidates” who do not fully represent the constituency of the member states is higher than it should be (Grossman 2016, 90). Regimes that have increased transparency on their selection of judges as well as those with a requirement to create sex representation equality on their benches have increased legitimacy and more equal representation (Ibid. 88).
Thank you for your following thoughts on the history of the ICJ: “The formation of a principal judicial organ for the United Nations has been evolving till the formation of the ICJ in 1946. Further, several international regimes have been put in place to guide common goals being pursued by different states. For sovereign nations wanting to join international legal courts of regimes, they consider the aspect of “special agreement” or the “compromis” which is a principle based on a nation having an explicit consent and rather not coercion into joining the other countries for a common course. Member countries look for the respect of personal desire rather than compulsory jurisdiction (Damaska, 2008). Further, these sovereign states consider the availability of optional clauses which ensure that the provisions of these regimes are not biding in terms of what the country can pursue after getting into the agreement. Moreover, these sovereign states consider the consistency of these rules with their economic, political and social values. This has to be the case because if the statues or regimes clash with their values, they would cause low or no growth for these states.”
How has the ICJ evolved over the years?