20 Aug Why Won’t Korea Accept Japan’s Invitation to Go to the ICJ?
I’ve been trapped in an August blogging-slump. But I am roused to my keyboard by the surge of territorial disputes in Asia. China has aggressively asserted ever stronger and more expansive claims in the South China Sea, sparking dissension amongst the Association for Southeast Asian Nations (ASEAN) and serious protests in Vietnam and the Philippine. China, Taiwan, and Japan are trading diplomatic barbs over the disputed Diaoyu/Senkaku Islands. And Korea and Japan are at loggerheads over the Dokdo/Takeshima islands. All of these disputes are getting worse, not better, and are exacerbating tensions all over Asia. This is shocking for most folks over here in the States, as it is hard to imagine why all of these countries are squabbling over (for the most part) a bunch of rocks.
Of these various disputes, the Korea-Japan battle over Dokdo/Takeshima seems the best candidate for resolution by international arbitration. Japan, in fact, has formally asked Korea to submit the dispute to the ICJ for binding arbitration and has even threatened some mild economic penalties if the Koreans don’t agree. And Korea has flatly turned down Japan, which is somewhat surprising given that Korea is one of the most enthusiastic supporters of international organizations and international dispute resolution in general. The President of the ICC is a Korean national, and Korea has a judge sitting on the International Tribunal for the Law of the Sea. (Oh yeah, that UN Secretary General is from Korea too!).
According to news reports, Korean diplomats have said that the ICJ is inappropriate because the Dokdo/Takeshima islands plainly belong to Korea under international law.
“Dokdo is clearly part of Korean territory historically, geographically and under international law, and no territorial dispute exists,” said Cho Tai-young, spokesman at the Ministry of Foreign Affairs and Trade. “The Japanese government’s proposal to take the Dokdo issue before the ICJ is not worth attention.”
From a legal perspective, this is a pretty unpersuasive response. Japan has agreed to accept any ICJ judgment. Korea has no shortage of brilliant international lawyers who could put on a terrific case at the ICJ. This whole case could be definitively resolved and a ongoing source of tension between the two neighbors could be settled amicably. The U.S. and Canada used international arbitration to settle some key disputes over the US-Canada border, with pretty good success over the years.
I suppose the answer is simply that Korea currently controls the islands, and the ICJ judgment will get Korea nothing except confirmation of what Korea already has. But if Korea continues to refuse Japan’s offer, then it is even less likely that any of these other disputes could go to international arbitration. Indeed, it suggests that international adjudication in Asia has a pretty bleak future. Korea and Japan are two of the most pro-international adjudication countries in the world. If they can’t agree to go to international arbitration, what are the chances that China (with its numerous territorial disputes with all of its neighbors) will ever agree to such arbitration?