As "quasi-states" continue to emerge as relevant and common entities, uncertainty over their boundaries, especially those that seem likely to be accepted by the international community, can create substantial economic and political instabilities. This commentary, written by Jonathan Drimmer, an attorney at Steptoe & Johnson, who practices in international and commercial litigation, discusses this emerging issue and advocates a particular response by the international community.
Mr. Drimmer writes: In general, the predominant international institution for resolving international border disputes is the [International Court of Justice (ICJ)], staffed by fifteen judges elected by member states of the U.N. The ICJ traditionally has been considered consensual in nature, in the sense that states must consent to its jurisdiction over them and to the specific dispute in question. Cases are brought to the ICJ either by the disputing states themselves, or through a referral for an advisory opinion from the U.N. General Assembly or Security Council.
Over the past several decades, the ICJ has decided scores of international land and maritime boundary disputes. In rendering its decisions, the ICJ looks to international conventions, customs, the general principles of law recognized by countries, and the writings of recognized scholars.
In the context of boundary disputes, the most important factor for the ICJ tends to be territorial claims backed by treaties. Unless defective, treaties are considered binding on the parties who entered them and dispositive when reflecting past agreements on international boundaries. One noteworthy difficulty, germane in the context of quasi-states, is the application of treaties to states not parties to the agreement. In those instances, the ICJ tends not to ignore treaties, but to rely on them to indicate the consent of other states – like colonial powers – with respect to boundaries inherited by state-parties, or for such factual evidence as how the borders stood at a particular time. Accordingly, although a state may not be a party to a treaty, the ICJ may nonetheless rely on the treaty terms in reaching its decision, as it provides legal notice, clarity, and ease of proof, all of which facilitate decision-making and compliance. [citations omitted]