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By Jackie Wallace
After several weeks of escalating controversy in the dispute over Hans Island, Denmark has backed off from its plan to send a ship to place a Danish flag on the island in response to Canada’s recent actions. Instead, Canada and Denmark have agreed that their foreign ministers will meet at the United Nations General Assembly in New York in September to pursue their discussions on this issue diplomatically, according to Marie-Christine Lilkoff, a spokesperson for Foreign Affairs Canada.
Yet, with set talks in place, Canada has not stopped pursuing broader actions to assert sovereignty over the Arctic. The Canadian military is sending a frigate, HMCSFredericton, to patrol the Davis Strait. Although HMCS Fredericton will not be near Hans Island, Canada is investigating the possibility that ships from the Faroe Islands — a protectorate of Denmark — are engaging in illegal fishing activities in the area.
This action has the potential to aggravate the dispute and the relations between the two countries. There are well established processes in place for adjudicating disputes between nations, says Edward Lee, an international law expert for the Canadian Institute of International Affairs. In the case of Hans Island, these will be in New York.
Where diplomacy fails to resolve an international issue, the nations involved will then submit to an arbitrator—a lawyer—who will hear the case. The nations must choose whether to have a single arbitrator or a three-person arbitration. In both cases, Lee says, “arbitrators are selected by mutual agreement.”
The process of choosing an arbitrator is done through negotiation, where nations may suggest individuals, sometimes providing lists of persons they deem acceptable, which may be accepted or rejected until an individual is agreed upon. In the case of single person arbitration the individual is always from a country neutral to the debate. In the case of a three-person arbitration an individual from both of the nations involved in the dispute may be chosen, along with a third, neutral party. Or the three-person arbitration may also be comprised completely of individuals from neutral nations.
During the arbitration, each country is represented by the legal advisor of its foreign ministry or by a private lawyer. Once all of the players have been established, “hearings would be held and maps would be presented and arguments would be heard,” says Lee. “And this can all take anywhere from a few hours to a few years.”
In cases where years of arbitration yield no resolution between nations, the two parties may then choose to submit their case to the International Court of Justice. Although the Court considers itself the “principal judicial organ of the United Nations” it is completely autonomous. It is comprised of 15 judges and is meant to represent“the main forms of civilization and the principal legal systems of the world.”The magistrates of the Court are considered independent and not representative of their government.
According to Lee, “usually each party involved in the dispute at hand also puts an ad hoc judge on the case before the Court.” The Court is meant to be the final ruling on all cases, although it has no policing system and do not follow up or enforce its rulings. But Lee says that it is rare that nations do not comply with the Court’s ruling.
“Direct negotiation is always preferable as it is, by far, the cheapest solution,” says Lee. “And of all of our boundary disputes that we have ongoing, Hans Island is by far the simplest.”
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