9.peaceful and Judiical Settlement of International Disputes
9.peaceful and Judiical Settlement of International Disputes
I. Introduction
1.Negotiations
Negotiations are discussions held directly by between the contending
parties with a view to finding a solution through dialogue without requiring
reference to third parties. Political considerations, rather than legal
arguments, permeate such a discussion, but legal arguments are often
adduced to support the negotiating positions of the parties.
In the Mavrommatis Palestine Concessions Case (Jurisdiction) (1924)
PCIJ Rep Ser A No. 2, the Permanent Court of International Justice (PCIJ)
declared that negotiations should be exhausted before a case is brought
before the Court. Negotiations are the most common form of dispute
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resolution and frequently, where these processes are successful, the
resulting compromise is embodied in a document which is given legal
force, such as a treaty.
2.Enquiry
Contending states may, on occasion, agree to appoint an impartial body to
carry out an investigation or enquiry into the facts surrounding a matter.
The object of such a factual report is to facilitate a negotiated settlement.
The Hague Convention on the Pacific Settlement of Disputes 1899 and
1907 both contain provisions which expedite the setting up of commissions
of enquiry. This procedure does not involve the making of specific
recommendations for the settlement of the problem.
General Assembly Resolution 2329 (XXII) of 1968 urged members of the
Organization to make greater use of enquiry procedures in the settlement of
international disputes. However, the utility of such investigations is
recognized by the international community to be limited, particularly where
the facts surrounding an issue are not in dispute.
3.Good offices
An offer of good offices involves the possibility of intercession by a third
neutral party into a dispute in order to establish direct contacts between the
parties, ultimately leading to direct negotiations. The tendering of good
offices may be made by an individual, such as the Secretary General of the
United Nations, or an agency such as the Security Council. By providing
good offices, the objective of the third party is to bring the parties together
to facilitate discussions, without actually becoming involved in the
negotiations.
4.Mediation
Mediation involves a greater degree of third party participation than good
offices, but essentially is an attempt to bring the parties together and to
suggest and, subsequently, communicate, alternative proposals for the
solution of the dispute and to attempt to reconcile the positions of the
parties. Suggestions of mediators do not have a binding effect. A recent
illustration of mediation was the successful efforts of US President Carter
in the negotiations between Egypt and Israel which ultimately led to the
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Egyptian-Israeli Peace Treaty of 1979.
5.Conciliation
Conciliation involves the participation of impartial or neutral third parties
in the formulation of proposals for the resolution of international disputes.
This procedure often requires an attempt to reconcile the views of the
contending parties although again the proposals of conciliators have no
biding effect in law.
The Hague Convention for the Pacific Settlement of International
Disputes 1899 and 1907 contain mechanisms and rules for the creation of
conciliation commissions. Such bodies may only be constituted with the
mutual consent of the parties in contention and are commonly given the
mandate of investigating and reporting the facts surrounding the matter. In
contemporary international relations, a number of international
organizations have adopted this procedure as a principal means of dispute
resolution, eg specialized agencies of the United Nations such as the GATT.
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be brought to the attention of the Security Council or the General Assembly
by any member. This provision extends to notification by non-participants
in the dispute.
IV. Arbitration
Arbitration has been defined by the International Law Commission (ILC)
as a procedure for the settlement of disputes between states by a binding
award on the basis of law and as a result of an undertaking voluntarily
accepted. Arbitration differs from adjudication in two important respects:
a). Arbitration gives the parties freedom to select the tribunal in contrast to
judicial settlement where the composition of the Court is beyond the
control of the parties; and
b). Arbitration allows the parties to select the applicable law whereas the
International Court is bound to apply principles of international law.
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processes. If both parties consent to arbitrate a matter, a special agreement
must be agreed. This instrument embodies the consensus between the
parties to arbitrate a matter and forms the basis of the tribunal’s
jurisdiction. The special agreement must specify a number of details,
including:
a). the identity of the arbitrators and their number;
b). the questions which the tribunal is expected to address; and
c). the law and procedure which is to be applied by the tribunal; and
d). the period within which the award must be rendered.
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parties concerned.
In contemporary international relations, resort to arbitration has been
generally confined to the settlement of private claims of nationals against
foreign states. In particular, the Iran-United States Claims Tribunal has
been especially active.
I. Introduction
The International Court of Justice (ICJ) is the principal judicial organ of the
United Nations and its Statute forms an annex to the United Nations
Charter. The Statute is, in reality, an adaptation of the Statute of the PCIJ,
with little amendment. The jurisprudence of the PCIJ, even in relation to
jurisdiction and procedure, remains relevant to the continuing functioning
of the ICJ. The judges to the Court were elected at the first meeting of the
UN General Assembly.
The primary function of the ICJ is the peaceful settlement of the disputes
between states.
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the General Assembly: Article 4. Only persons of high moral character,
who possess the qualifications required in their respective countries for
appointment to the highest judicial offices, or are jurisconsults of
recognized competence in international law are eligible for appointment.
Although the Statute of the Court states that judges are to be elected
without regard to nationality, in practice an equitable geographical
representation has been sought, and as a result of political reality, the five
permanent members of the Security Council have been continuously
represented on the Court. Judges are appointed for a nine year period and
are eligible for re-election. Elections for appointments are staggered, with
five vacancies arising every three years. The judges themselves elect both a
President and a Vice-President.
A judge is not prohibited from hearing a case involving his national state,
although the Rules of the Court dictate that, if a national is President of the
Court, he will refrain from exercising his Presidential functions in that case.
If a state party to a dispute does not have a judge of that nationality, a judge
ad hoc may be appointed for that specific case. If the Court has no
nationals of either party, both may exercise their right to appoint a judge ad
hoc.
Cases are decided by the majority of judges present and in the event of a
tied vote, the President has a casting vote. The judgment of the Court, as
well as separate opinions and dissenting judgments, are published.
A case may be heard by a full Court (in which case the quorum is nine) or
by a Chamber of three or more judges. In January 1982, the Court created a
special Chamber for the first time to adjudicate on the Gulf of Maine
dispute between Canada and the United States: see the Delimitation of the
Maritime Boundary in the Gulf of Maine Area Case (1984) ICJ Rep 246.
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(1).Contentious jurisdiction
The contentious jurisdiction of the Court refers to its capacity to adjudicate
disputes between two or more states. Access to the Court for the settlement
of international differences is limited by the principle that only states may
be parties in cases before the Court: Article 34. As a result, international
organizations may not litigate matters before the Court, nor may non-state
entities. Only states may be parties to the Statute of the Court and in this
respect the following principles apply:
a).All UN members are ipso facto parties to the Statute;
b).A non-UN member may become a party to the Statute if it is prepared to
give:
i).an acceptance of the provisions of the Statute;
ii).an agreement of the provisions of the Statute;
iii).an undertaking to contribute to the Court’s expenses.
c).A state may become a party to the Statute by lodging a special
declaration with the Court’s registry, according to which it accepts the
obligations of the Statute and Article 94 of the UN Charter. Declarations
may be general, accepting the Court’s jurisdiction in respect of all disputes,
or particular, which restricts jurisdiction to the case in hand.
“The jurisdiction of the Court comprises all cases which the parties refer to
it and all matters specially provided for in the Charter of the United Nations
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or in treaties and convention in force.”
It is clear that jurisdiction may be founded not only where the mutual
consent of the parties after the dispute has arisen, but also by prior consent
expressed in a treaty. Among the instruments which refer questions and
disputes to the Court, are treaties of Commerce and Economic Co-
operation, numerous bilateral Air Services Agreements and the European
Convention for the Peaceful Settlement of Disputes 1957. In the Iran
Hostages Case (1980) ICJ Rep 3, the Court accepted jurisdiction on the
referral provision in the bilateral Treaty of Amity, Economic Relations and
Consular Rights between the two parties and in the protocols to the
multilateral Vienna Convention on Diplomatic Relations 1961 and the
Vienna Convention on Consular Relations 1963.
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Article 36(2) of the Statute of the Court provides:
“The state parties to the present Statute may at any time declare that they
recognize as compulsory ipso facto and without special agreement, in
relation to any other state accepting the same obligation, the jurisdiction of
the Court in all legal disputes concerning:
*the interpretation of a treaty;
*any question of international law;
*the existence of any fact which, if established, would constitute a breach
of an international obligation;
*the nature and extent of the reparation to be made for the breach of an
international obligation.”
States are not required to make a declaration under Article 36(2) solely by
becoming a party to the Statue. However, once a declaration has been
properly made, the jurisdiction of the Court is mandatory in relation to the
matters specifically detailed. Article 36(5) of the Statute provides that
declarations made under the Statute of the PCIJ are to continue under the
Statute of the ICJ. Article 36(3) permits declarations to be formulated on an
unconditional basis, or subject to the condition of reciprocity.
Declarations are made for specific periods, normally five years, with
provision for renewal, and may be terminated on notice, but cannot be
terminated retroactively. Consequently, where the Court is seized of a case,
a state cannot withdraw by revoking its declaration: see Nicaragua v
United States (Jurisdiction) Case (1984) ICJ Rep 392.
Although Article 36(2) does not specifically grant such a right, states
frequently make declarations subject to reservation. The most common
reservations relate to:
i). disputes in which another forum for resolution is specified;
ii).disputes arising before a specific date, which is generally the date of the
declaration;
iii).disputes arising as a result of hostilities;
iv).disputes arising in relation to certain categories of states, ie
Commonwealth nations, Central American states;
v).disputes relating to matters falling within the domestic jurisdiction of the
declaratory state, as determined by international law or even by the state
itself.
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The issue of reservation to compulsory jurisdiction arose in the Norwegian
Loans Case (1957) ICJ Rep 9. In this case, the Court allowed Norway to
invoke, as a bar to jurisdiction, the automatic self-judging reservation of the
French government. Although the Court itself has not directly pronounced
on the legitimacy of such reservations, the practice has been the subject of
adverse comment in a number of separate opinions and dissenting
judgments.
The practice of making reservations has created problems for the Court in
trying to ascertain the exact scope of the subject-matter over which states
have consented by declaration. Since declarations are made on the basis of
reciprocity, the Court has jurisdiction only over those areas which fall
within the areas in which the declarations of parties overlap. This involves
the application of the principle of ‘reciprocity’. As a result, the jurisdiction
of the court under Article 36(2) may by circumscribed in two respects;
i).a party may rely on a reservation made by itself to limit the jurisdiction
of the Court; and
ii).a party may rely on a reservation made by the party trying to establish
jurisdiction, on the basis of reciprocity, as a limitation on jurisdiction.
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Where the question posed is not within the functions of the body requesting
the opinion, the Court does not have jurisdiction to give an advisory
opinion: Legality of the Use by a State of Nuclear Weapons in Armed
Conflicts (Request for Advisory Opinion by the World Health Organization)
(1996). Here, the Court could not give an opinion because WHO was not
concerned with the legality of nuclear weapons but with their effect upon
health.
Advisory opinions are not legally binding on the body requesting the legal
opinion of the Court. In practice, however, bodies have treated such
opinions with a considerable degree of reverence and certain advisory
opinions have undoubtedly contributed to the development of international
law.
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including the relationship between the parties and the steps that had been
taken prior to litigation to resolve the matter.
The requirements for obtaining interim protection from the ICJ were
discussed at length by the Court in the Case Concerning Questions of
Interpretation and Application of 1971 Montreal Convention Arising from
the Aerial Incident at Lockerbie (Provisional Measures): Libya v UK
(1992) ICJ Rep 3.
The Court confirmed that two pre-conditions were required for interim
protection, namely the existence of a prima facie case for the exercise of
jurisdiction by the Court over the merits of the dispute and the existence of
a risk of imminent irreparable damage to the rights of the party seeking
protection.
In the event that a state fails to implement an interim protection order of the
Court, no sanction can be imposed by the Court to compel compliance. The
Court merely has power to reiterate the terms of its earlier order through a
subsequent order. For example, in Case Concerning the Application of the
Convention of the Prevention and Punishment of the Crime of Genocide
(Second Request for the Indication of Provisional Measures) (1993) ICJ
Rep 325, where Yugoslavia had effectively ignored the Court’s first order,
the Court could only order Yugoslavia to give immediate and effective
implementation to the earlier order. No additional steps could be taken to
enforce the terms of the original order.
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