Part of the ANU College of Law Research Seminar Series 2021 series
National encounters with the International Court of Justice (ICJ) are not limited to actual proceedings and judgments. Instead, the prospect of bringing a case to the Court is apparent in a wide range of inter-state disputes and situations. Although the influence of the Court is difficult to substantiate without actual cases, this paper seeks to uncover evidence of the Court’s role in an historic dispute. It examines a dispute between Japan and Australia over pearl fishing during the 1950s. Using records held in the National Archives of Australia, it traces the positions of the parties at different stages and the circumstances that led to the final resolution of the dispute. While proposed proceedings were delayed and finally abandoned, and there is no court record, it is still possible to discern from the parties’ position a dependence upon — and latent encounter with — the Court. This study’s findings provide a greater understanding about the role of the ICJ in a broader range of international disputes than is generally available, while also demonstrating the value of historical and socio-legal approaches to international law.
This talk is based on a forthcoming publication: Emma Nyhan, ‘A Latent Encounter with the Court: How Australia and Japan Settled a Pearl Fisheries Dispute’ in Hilary Charlesworth and Margaret Young (eds) ‘National Encounters with the International Court of Justice’ (2021) 21(3) Melbourne Journal of International Law.