Globe

How the ICJ might rule on Japan's island standoffs

April 14, 2013

By NORITO KUNISUE and NAOATSU AOYAMA/ The Asahi Shimbun GLOBE

Though the role of the International Court of Justice (ICJ) is to settle disputes between states, it sometimes becomes indirectly involved in cases involving ordinary citizens.

One of the first of these was in 1996, when the court provided an advisory opinion relating to the legality of both the threat to use and the actual use of nuclear weapons.

A movement to obtain a ruling on this began in the 1980s. Its central question: "Is the threat or use of nuclear weapons in any circumstance permitted under international law?"

In 1992, with the end of the Cold War and the desire for nuclear disarmament gaining momentum, a number of peace organizations got together under the banner of the World Court Project and embarked on lobbying in various countries. Key players in this were lawyers from Europe and the United States and the Nobel Peace Prize-winning group International Physicians for the Prevention of Nuclear War.

Largely because of interest by developing nations, the World Health Organization in 1993, and the U.N. General Assembly in 1994, adopted resolutions calling on the ICJ to issue an advisory opinion on the matter.

ICJ trials usually attract little media attention. But this time, journalists from around the world descended upon the courtroom in 1995 when the mayors of Hiroshima and Nagasaki gave testimony on the horror of being the victims of nuclear weapons.

Massive media exposure was one of the things the World Court Project was aiming for, as it believed international public opinion would be aroused if the issue became a hot topic. It could be said that this was an attempt to use the ICJ for political purposes.

In 1996, the ICJ delivered its opinion. It clearly stated that the use of nuclear weapons would likely be illegal, declaring: "the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict."

However, it offered reservations, saying "the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of a State would be at stake."

It declined to offer an opinion in response to the request from the WHO, a public health organization, declaring that the question did not fall "within the scope of the activities of that organization."

"Though the question on the legality of the use of nuclear weapons is a legal matter, in the background were political factors aiming at the non-use of nuclear weapons," said Terumi Furukawa, 75, an honorary professor at Hosei University. "As such, the ICJ, as a judicial institution, was unsure whether or not it should deal with the matter."

If it avoided making a decision and failed to clarify the legality of the issue, the ICJ would lose respect in non-nuclear-weapons states, which form the global majority. At the same time, if it validated the argument, there was no chance that nuclear nations would accept it. The court's final opinion is seen as striking a delicate balance between current international law and political reality.

Furukawa added: "The role of the ICJ is to render decisions based on current international law. However, opinions often differ when it comes to determining the law's foundation, namely, 'what are the specific conventions that comprise international law?'"

In recent years, there have been increasing numbers of cases brought before the ICJ after nongovernmental organizations and individuals caught the sympathy of their governments and got them to file a case. It is said that public pressure and lobbying by anti-whaling organizations were behind Australia's complaint against Japan's research whaling with the ICJ in 2010.

There is no shortage of criticism of this trend. Former ICJ Judge Shigeru Oda, 88, is known for advocating a tight rein on the types of cases that make it to the ICJ. He even voted against the court's decision to deliberate on the legality of nuclear weapons.

Some outside observers note the trouble the ICJ has in defining its duties.

"Though the ICJ is without doubt an agency that happens to be involved in international politics, it needs to be conscious of the boundary between politics and the law. It will compromise its proper role as an administrator of justice if it pokes its nose into political issues," said Masahiro Nishii, 66, a professor at Osaka Jogakuin University.

However, the World Court Project retains momentum to this day. International Physicians for the Prevention of Nuclear War and other organizations have launched a new initiative, the International Campaign to Abolish Nuclear Weapons, which seeks to clarify the illegality of nuclear weapons. They are considering a possible treaty that would ban the use of such weapons.

The group's co-chair, 57-year-old Tilman Ruff, said, "Using the creation of a treaty as a springboard, we would like to take the next step toward abolishing nuclear weapons."

JAPAN IN COURT

Japan's government has mulled filing a complaint with the ICJ over its dispute with South Korea over sovereignty of the Takeshima isles. Should the court hear the case, upon what points would it base its decision?

Takashi Tsukamoto, 60, a professor at Tokai University, is familiar with the arguments in this issue. He says an important precedent for island sovereignty disputes is the "Island of Palmas Case," which was contested in arbitration in 1928. The judgement set down a basic principle that a country needs to prove that as a state it has continuously exercised sovereignty over a certain territory for a long period of time and was not opposed by other countries.

But what constitutes such proof? Based on past ICJ precedents, Tsukamoto identifies the following points.

--Acts conducted by administrative authorities that have strong validity, such as taxation, the application of law, criminal justice and the conducting of population censuses. However, acts undertaken after the dispute flared up cannot serve as evidence.

--First discovery, maps showing the territory as part of the state, geographical proximity, and similar facts are in themselves insufficient. And commercial agriculture and fishing are not exercises of sovereignty.

--Failure to make appropriate objections over another country's sovereign actions is taken to be tacit acceptance of that country's right of control. Even if you possess sovereignty, if you do not object to the other's presence, sovereignty might be transferred to the other party.

On Jan. 28, 1905, Japan declared that "No country is exercising sovereignty over Takeshima," and a Cabinet decision led to the islands becoming administratively incorporated within Shimane Prefecture.

Tsukamoto says there was already a certain basis for sovereignty in the Edo Period (1603-1867), and it can be argued that this was reinforced by the prefectural incorporation and by continued government actions thereafter.

On the other hand, in 1900, Korea imperially decreed that "Seokdo" would be placed under the country's administrative control. It says Seokdo refers to Dokdo, which is known as Takeshima in Japanese.

If the ICJ is asked to judge on the matter, it would likely assess which side, Korea or Japan, can show the hardest evidence.

"There is value in using the ICJ because politics are removed from the dispute, and focus is placed instead on the legal aspects," said Shinya Murase, 69, of Sophia University.

Currently, however, there is almost no chance that the dispute will make it to trial. Japan has approached Korea three times about filing a joint complaint with the ICJ, and each time Korea has refused. The latest request was submitted only last year.

Korea takes the stance that it controls the islands and as such no dispute exists. It has not accepted any compulsory jurisdiction and has no obligation to respond in court.

With regard to the Senkaku Islands, it is clear that Japan maintains effective control over them, and Japan has adopted the stance that there is no territorial issue with China. Because Japan insists that there is "no dispute," it is not seeking to file a complaint with the ICJ.

However, given the fever-pitch standoff with Chinese government aircraft and maritime vessels near the islands, some outside observers believe Japan may, in fact, be wise to turn to the ICJ.

"Since we are already facing such an explosive situation, it would probably be good for Japan to take action and suggest that China file a claim--and then respond in court," said Yoshio Otani, 73, an honorary professor at Hitotsubashi University.

To date, however, the Chinese side has made no move to file a claim unilaterally.

"The stances of both countries with regard to the Diaoyu (Senkaku) Islands are too far apart to be able to bring the problem to a third party, including to the ICJ, for resolution," said Xinjun Zhang, 45, an associate professor at Tsinghua University in Beijing. "The issue of territory, even domestically, is intertwined with ethnic pride. It is a very sensitive matter. Currently, it would be better to think about how to manage the issue rather than try to resolve it."

However, even within China, interest in international law is increasing.

"Recognition is growing that international law can be used as a tool for resolving conflict and avoiding war," Zhang said.

By NORITO KUNISUE and NAOATSU AOYAMA/ The Asahi Shimbun GLOBE
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World Court Project members gather in front of the ICJ in 1995. (Photo: Norito Kunisue)

World Court Project members gather in front of the ICJ in 1995. (Photo: Norito Kunisue)

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  • World Court Project members gather in front of the ICJ in 1995. (Photo: Norito Kunisue)

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