09 Mar The Falklands Dispute: Too Important for the ICJ
The always knowledgeable Marko Milanovic, responding to an earlier post of mine, reviewed the possibility of an international tribunal resolving the Falklands dispute here, and concludes that no court decision will happen because “… the Falklands dispute is, as a political matter, almost singularly unsuitable for judicial resolution.”
Marko’s argument seems persuasive. There is a long and confusing historical record to battle over with respect to title, and there are serious questions about the right of “self-determination” as applied to the Falklands. Yet there are many more difficult disputes that have been tossed to the ICJ (see, e.g., Kosovo). So I’m not sure why this dispute is particularly worse. Indeed, there seems to be lots of law where, and lots of interesting facts. It would make a terrific case.
But Marko is of course right that the UK might indeed lose, and so might Argentina. But that always seems to be the case in ICJ cases. And this could happen. The UK has accepted the ICJ’s compulsory jurisdiction. All Argentina would have to do is accept compulsory jurisdiction and take the UK to the World Court.
But having thought about and read about it some more, I begin to see why this won’t happen. What is different here, as this article suggests, is the stakes. Oil! Natural gas! The stakes are simply much too high to permit some random judges in the Hague to determine the outcome here. So it is dumped back in the realm of politics, where it belongs.
Tribunals, national and international, have been dealing with “politics” forever, because there has always been politics with law. More specifically, one of the victories in national systems has been to deny the “state act” defense. More specifically even, the ICJ has been dealing with issues having a political dimension for decades now. Nicaragua, Teheran, The Bosnia Genocide Case… It’s a totally archaic way of seeing international law to view this old dichotomy of law and politics in this way. And more fundamentally, with this kind of approach you discredit the whole concept of international law, especially international humanitarian law and international criminal law. Isn’t a civil war always political? Should we refrain of dealing with war crimes for this reason? By the same standard, Bush’s decision to invade Irak should not be reviewed legally because it’s too political, as is the treatment of the prisoners in Guantanamo. With all due respect, you cannot confuse empirical pragmatism (that it’s unlikely to go to the ICJ) with normative desirability. It’s a methodological dead end. In that case, let’s just scrap law altogether, shall we? “Random judges in the hague” are not necessarily less legitimate than power relations and centuries of random events,… Read more »
Julian, Thanks for this reply. Just to clarify: my argument is not that the Falklands dispute is somehow more difficult or political in nature than numerous other disputes that the ICJ has previously dealt with. Rather, as things stand today it is simply not in the UK’s interest, as the UK perceives it, to submit this case to judicial resolution, for the reasons I explain in my post. This does not mean that the dispute becomes (only) political rather than legal, just that the forum where the dispute is being addressed is not a court, as is indeed the case with most international disputes. In fact, both Argentina and the UK have for decades argued about the Falklands in the terms of international law – not that it can ever be entirely separated from politics, of course. And a clarification: while it is true that the UK has accepted the compulsory jurisdiction of the ICJ under Article 36(2) of its Statute, the dispute could still not go to the Court without the UK’s consent, even if Argentina itself filed an Article 36(2) declaration. This is because the UK’s declaration is worded rather masterfully to exclude all disputes that have arisen… Read more »
For some reason, my signature was not included in the previous comment, but it really was me!
I predict that in the event oil reserves are found, given the necessity of using Argentina for support and logistics, that some settlement will be reached regarding the oil revenues that gives Argentina a decent share of the oil profits.
There’s really no need to have a protracted legal battle over all this.