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Thursday, July 6, 2017

Why countries choose to resolve disputes before international courts



On June 30 this year, Malaysia filed an additional application to the International Court of Justice (ICJ) to have the 2008 decision by the court relating to sovereignty over Pulau Batu Puteh, Middle Rocks, and South Ledge interpreted.
This follows an earlier application on Feb 2 by Malaysia to the ICJ for the 2008 decision to be revised based on the finding of several new facts.
As these applications remain pending in the ICJ, it is important for us to reflect on the true value for countries to participate in the international dispute settlement process, particularly before international courts and tribunals.
Very often, countries resolve their disputes through negotiations, often in a confidential manner. At other times, differences are resolved with the assistance of a third party either by way of mediation, conciliation or good offices; an example being Malaysia’s recent offer to assist in mediating between Qatar and its Middle East neighbours.
However, when such less formal methods do not bear results, the most viable option may be to resort to an international court or tribunal, as seen in the present case between Malaysia and Singapore.
When countries resolve disputes before an international court, such as the ICJ, they are in fact committing to having their differences resolved in a peaceful and amicable manner.
In fact, the whole purpose for the design of an international dispute settlement process, affirmed by the post-World War II Charter of the United Nations, is to prevent countries from reverting to a time when it was acceptable to resolve their differences through arms.
By resorting to an independent international court, the disputing countries undertake to apply international law to resolve their disputes. This reinforces the value of international law and affirms a rule-based international order. This is especially important in this trying era, where some countries would prefer to rely on military might rather than on a rule-based system.
Finally, submitting to an international court brings certainty and finality to the outcome of the dispute, as the decisions are often final and cannot be appealed against. Such finality allows countries to put such disputes (which often exist for decades) behind them and to move forward, building stronger ties.

Malaysia and Singapore have time and again turned to the international dispute settlement process to resolve their differences, particularly through international courts and tribunals.
This includes disputes involving the environmental impact of Singapore’s reclamation activities before the International Tribunal for the Law of the Sea (ITLOS) and the Permanent Court of Arbitration (PCA), disputes relating to taxation obligations as observed in the Railway Land Arbitration case before the PCA, and disputes on sovereignty in the present case before the ICJ.
Ultimately, when countries choose to resolve their disputes before an international court such as the ICJ, it should not be viewed as a hostile and futile move, but rather as a reflection that the process of international dispute settlement is living up to its very purpose.

SHAUN KANG is a researcher in international law.- Mkini

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