by Julian Ku
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.