Public International Law: Chapter XIII - Peaceful Settlement of International Disputes

 Peaceful Settlement of International Disputes

The meaning of international “dispute.”

  • Not every disagreement is a “dispute.” 
  • A dispute in international law is a technical term which means “a disagreement on a point of law or fact, a conflict of legal views or interests between two persons.” 
    • A disagreement does not amount to a dispute if its resolution would have no practical effect on the relationship between the parties. 
  • Examples of a dispute are: 
    • disagreements 
      • over the interpretation of a treaty
      • about state boundaries 
      • about state responsibility
  • Article 2, paragraph 3 of the UN Charter says: “All members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” 
    • There is no general obligation to settle disputes, except perhaps those which according to Article 33, might endanger peace and security. 
    • But if a decision is made to settle disputes, the obligation is to settle them by peaceful means.
Peaceful methods of settling disputes.
  • The key provisions in the UN Charter are the following: 
Article 33. 
  1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.
  2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.
Article 36
  1. The Security Council may, at any stage of a dispute of the nature referred to in Article 33 or of a situation of like nature, recommend appropriate procedures or methods of adjustment.
  2. The Security Council should take into consideration any procedures for the settlement of the dispute which have already been adopted by the parties.
  3. In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court. 
Article 37 
  1. Should the parties to a dispute of the nature referred to in Article 33 fail to settle it by the means indicated in that Article, they shall refer it to the Security Council. 
  2. If the Security Council deems that the continuance of the dispute is in fact likely to endanger the maintenance of international peace and security, it shall decide whether to take action under Article 36 or to recommend such terms of settlement as it may consider appropriate. 
Article 38 
  • Without prejudice to the provisions of Articles 33 to 37, the Security Council may, if all the parties to any dispute so request, make recommendations to the parties with a view to a pacific settlement of the dispute.

  • The peaceful means of settling disputes mentioned in the Charter may be classified into: 
    1. non-judicial methods 
      • negotiation
      • enquiry,
      • mediation
      • conciliation
    2. quasi-judicial method
      • arbitration
    3. judicial method
  •  Another way of classifying them is into:
    • diplomatic method
    • judicial method

Non-judicial or diplomatic methods. 

Negotiation
  • States are generally hesitant to submit their disputes to an adjudicatory body.
    • For this reason, negotiation is a preferred vehicle. 
  • There are no set rules for negotiation. 
    • It may take place at arm’s length or face to face. 
    • But for a negotiated settlement to be legally binding, the parties must agree to it. 
    • The agreement to negotiate may be formalized:
      • in a treaty or 
      • in a simple exchange of notes
  • A preliminary step to negotiation might be “good offices" when a neutral third party tries to bring two disputants together. 
    • Having been brought together, the usual first step, often required before judicial settlement, is negotiation. 
    • It may be carried out by:
      • diplomatic correspondence
      • face-to-face dialogue between permanent envoys or 
      • by designated negotiators 
    • Essentially, negotiation is a give-and-take process of looking for a win-win solution.
Mediation 
  • Mediation involves assistance by third parties who either act as bridge between parties:
    • who do not meet, or 
    • who may sit with the disputants to chair meetings, suggest solutions, cajole, etc. 
  • The mediator must be approved by both parties. 
Inquiry
  • Inquiry is fact-finding done by a designated group of individuals or an institution. 
  • When undertaken with the consent of the parties, it frequently resolves disputes based solely on questions of fact. 
Conciliation 
  • Conciliation is a more formal technique whereby the parties agree to refer controversies to make findings of fact and recommendation to:
    • an individual, 
    • a group of individuals or
    • an institution 
  • As a rule, parties do not agree to be bound by recommendations. But this clears the air.

Quasi-judicial method. 

Arbitration
  • Arbitration is the binding settlement of a dispute on the basis of law by a non-permanent body designated by the parties. 
    • The composition, the jurisdiction and the rules of procedure to be applied are agreed upon by the parties in a compromis d’arbitrage. 
    • States cannot be required to submit to arbitration unless there is a previous agreement making arbitration compulsory.
  • What mainly distinguishes arbitration from judicial settlement is that parties have a greater say in deciding, for instance, the law to be applied and the composition of the arbitral tribunal. 
    • The process thereby becomes more flexible. 
  • There are at least three types of arbitral agreements. 
    1. The first is an arbitration clause that is incorporated as part of a treaty. 
      • This is commonly found in commercial treaties. 
    2. The second type of agreement are treaties whose sole function is to establish methods for the arbitration of disputes.
      • E.g., The Hague Convention for the Pacific Settlement of Disputes. 
    3. The third type are ad-hoc arbitral agreements. 
      • E.g., the agreement for the settlement of claims between the US and Iran (1981). 
  • Arbitral awards have made significant contribution to the development of international law. 
    • For instance, the arbitral award in the Las Palmas case established an important precedent involving acquisition of territory and decisions of the US-Mexican Claims Commission clarified various points on state responsibility.
Arbitral decisions
  • Arbitral tribunals apply international law unless the parties specify that some other law should be applied. 
    • Under certain circumstances, arbitral decisions may be challenged. 
  • The four most commonly accepted bases are: 
    1. that the arbitral body exceeded its powers; 
    2. that there was corruption on the part of a member of the body; 
    3. that there was failure to state the reasons for the awards or a serious departure from a fundamental rule of procedure; 
    4. that the undertaking to arbitrate or the compromis is a nullity. 
  • Domestic courts, however, may refuse to give recognition to awards given by foreign arbitral tribunals under grounds found in the Convention on the Recognition and Enforcement of Foreign Arbitral Awards which says: 
  1. A court in a state party to the Convention may deny recognition or enforcement to a foreign arbitral award if: 
    1. the agreement to arbitrate was not valid under applicable law;
    2. the party against which the award was rendered did not receive proper notice of the proceedings or was otherwise not afforded an opportunity to present its case;
    3. the award deals with matters outside the terms of the agreement to arbitrate;
    4. the constitution of the arbitral tribunal or the arbitral procedure was contrary to the agreement of the parties or to the law of the state where the arbitration took place; or
    5. the award has not yet become binding on the parties, or has been suspended or set aside by a competent court in the state where it was made.
  2. A court of a state party to the Convention may also deny recognition or enforcement to a foreign arbitral award that meets the requirements of § 487 if, under the law of that state:
    1. the subject matter of the controversy is not capable of settlement by arbitration; or
    2.  recognition or enforcement would be contrary to public policy. (§488, Third Restatement.)
Judicial method: the International Court of Justice (ICJ).
  • The UN’s principal judicial organ is the International Court of Justice. 
    • It is the successor to the Permanent Court of International Justice established by the League of Nations. 
    • It came into being in 1945 through the Statute of the Court. 
    • All members of the UN are ipso facto parties to the Statute of the International Court of Justice. 
    • Being party to the Statute, however, does not mean acceptance of the jurisdiction of the Court. 
      • It simply means that the state may accept the jurisdiction of the court. 
    • The Statute opens the court’s door to member states. 
    • Only states may be parties in the court. 
  • The cardinal rule in international courts is that states cannot be compelled to submit disputes to international adjudication unless they have consented to it either before a dispute has arisen or thereafter.
    • States are also free to limit their acceptance to certain types of disputes and to attach various conditions or reservations to their acceptance.
Composition of the Court.

Article 2. 
  • The Court shall be composed of a body of independent judges, elected regardless of their nationality from among 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.
Article 3. 
  1. The Court shall consist of fifteen members, no two of whom may be nationals of the same state. 
  2. A person who for the purposes of membership in the Court could be regarded as a national of more than one state shall be deemed to be a national of the one in which he ordinarily exercises civil and political rights. 
Article 26. 
  1. The Court may from time to time form one or more chambers, composed of three or more judges as the Court may determine, for dealing with particular categories of cases; for example, labour cases and cases relating to transit and communications.
  2. The Court may at any time form a chamber for dealing with a particular case. The number of judges to constitute such a chamber shall be determined by the Court with the approval of the parties. 
  3. Cases shall be heard and determined by the chambers provided for in this article if the parties so request. 
Article 27. 
  • A judgment given by any of the chambers provided for in Articles 26 and 29 shall be considered as rendered by the Court. 
Article 31. 
  1. Judges of the nationality of each of the parties shall retain their right to sit in the case before the Court. 
  2. If the Court includes upon the Bench a judge of the nationality of one of the parties, any other party may choose a person to sit as judge. Such person shall be chosen preferably from among those persons who have been nominated as candidates as provided in Articles 4 and 5. 
  3. If the Court includes upon the Bench no judge of the nationality of the parties, each of these parties may proceed to choose a judge as provided in paragraph 2 of this Article.
  4. The provisions of this Article shall apply to the case of Articles 26 and 29. In such cases, the President shall request one or, if necessary, two of the members of the Court forming the chamber to give place to the members of the Court of the nationality of the parties concerned, and, failing such, or if they are unable to be present, to the judges specially chosen by the parties. 
  5. Should there be several parties in the same interest, they shall, for the purpose of the preceding provisions, be reckoned as one party only. Any doubt upon this point shall be settled by the decision of the Court.
  6. Judges chosen as laid down in paragraphs 2, 3, and 4 of this Article shall fulfill the conditions required by Articles 2, 17 (paragraph 2), 20, and 24 of the present Statute. They shall take part in the decision on terms of complete equality with their colleagues.
Jurisdiction of the ICJ: Contentious jurisdiction. 
  • The Court exercises two types of jurisdiction: 
    1. contentious jurisdiction
    2. advisory jurisdiction.
  • The principal rules on contentious jurisdiction are the following: 
Article 36. 
  1. 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 or in treaties and conventions in force. 
  2. The states 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: 
    1. the interpretation of a treaty; 
    2. any question of international law; 
    3. the existence of any fact which, if established, would constitute a breach of an international obligation; 
    4. the nature or extent of the reparation to be made for the breach of an international obligation.
  3. The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time.
  4. Such declarations shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court.
  5. Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms.
  6. In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.
  • From Article 36, the following should be noted: jurisdiction of the ICJ is applicable only to disputes between states and disputes are settled by international law and not by domestic law. 
    • But the Court has jurisdiction only when a case is referred to it by the parties. 
  • There are three ways through which states may accept jurisdiction of the court. 
    1. The first comes about on an ad hoc basis. 
      • This can happen when one party applies unilaterally to the Court and this application is followed by consent by the other state. 
    2. A second way is when parties adhere to a treaty which accepts the jurisdiction of the court on matters of interpretation or application of the treaty. 
    3. Finally, acceptance of jurisdiction can take place by a unilateral declaration that recognition of jurisdiction in relation to any other state accepting the same jurisdiction in all legal disputes. 
      • This last creates the optional system of submitting to the jurisdiction of the Court. 
      • The optional system is operative only for states that “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:
        1. the interpretation of a treaty; 
        2. any question of international law; 
        3. the existence of any fact which, if established, would constitute a breach of an international obligation;
        4. the nature or extent of the reparation to be made for the breach of an international obligation.” 
  • The Declaration is deposited with the Secretary General. 
  • The Declaration in the optional system “may be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time.” 
    • States therefore can limit the extent to which they are subjecting themselves to the jurisdiction of the court. 
  • The significance of reciprocity in the matter of limitations was enunciated by the Court in Interhandel Case: “Reciprocity in the case of Declarations accepting the compulsory jurisdiction of the Court enables a Party to invoke a reservation to that acceptance which it has not expressed in its own Declaration but which the other Party has expressed in its Declaration.” 
      • Thus, if a party that has made a Declaration unconditionally is brought to court by another that has made a Declaration with conditions, the former can invoke the conditions in the latter’s Declaration. 
  • The following are three cases illustrate the optional system:
  • WON Bulgaria has submitted itself to the Court’s jurisdiction when it is alleged that Bulgarian military failed to take actions necessitated by international civil aviation agreements when an El Al Israel airliner entered into Bulgarian airspace and was shot down by them. NO
  • The case was dropped by the US. The objections of Bulgaria must be noted, particularly its objection which called upon the grounds of reciprocity and consensual basis of ICJ jurisdiction by invoking the Connally amendment reservation, exempting from ICJ Jurisdiction matters cognizable within its internal competence.
  • WON the US accepted the jurisdiction of the ICJ. YES
  • In 1946, US declared its adherence to ICJ jurisdiction, noting that it would be terminated after six months notice given to the UN regarding its expiration. 
  • After figuring out that Nicaragua would bring the situation to court, they deposited the 1984 notification with the UN. 
  • The Court ruled that Nicaragua was a “state accepting the same obligation” as the US as in its acceptance of the Court’s jurisdiction under the Statute of the Permanent Court of International Justice, and that the US could not defy its own Declaration by not complying with its “6-months notice” provision.
  • WON Portugal can bring an action against Australia regarding the “Zone of Cooperation” which is the subject of the treaty between Australia and Indonesia. NO
  • The Court ruled that the actual dispute was between Portugal and Indonesia, and could not continue because Indonesia had not accepted the jurisdiction of the ICJ.

Provisional measures. 

Article 41 
  1. The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.
  2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.
  • Given the circumstances, the Court deems it appropriate to grant provisional measures, and emphasizes that the grant does not prejudice the eventual decision of the main case.
  • WON the Court can grant the provisional measures requested by Yugoslavia against the NATO states regarding bombings on the basis of the Genocide Convention. NO
  • The Court denied the application because the US did not give its consent to be bound by the Court’s jurisdiction and, not consenting, the provisional measure cannot be imposed

Intervention. 

Article 62. 
  1. Should a state consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene. 
  2. It shall be for the Court to decide upon this request. 
Article 63. 
  1. Whenever the construction of a convention to which states other than those concerned in the case are parties is in question, the Registrar shall notify all such states forthwith. 
  2. Every state so notified has the right to intervene in the proceedings; but if it uses this right, the construction given by the judgment will be equally binding upon it.
  • WON Nicaragua can intervene in the dispute between El Salvador and Honduras regarding the protection of its legal rights in the Gulf of Fonseca. YES
  • The Court ruled that Nicaragua was able to show proof that they had interest of a legal nature which may be affected by the Court’s decision and granted the request to intervene.

Obligation to comply with decisions.

Article 59 (ICJ Statute) 
  • The decision of the Court has no binding force except between the parties and in respect of that particular case. 
Article 60 
  • The judgment is final and without appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party. 
Article 61 
  1. An application for revision of a judgment may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence. 
  2. The proceedings for revision shall be opened by a judgment of the Court expressly recording the existence of the new fact, recognizing that it has such a character as to lay the case open to revision, and declaring the application admissible on this ground.
  3. The Court may require previous compliance with the terms of the judgment before it admits proceedings in revision. 
  4. The application for revision must be made at latest within six months of the discovery of the new fact. 
  5. No application for revision may be made after the lapse of ten years from the date of the judgment.
Article 94 (UN Charter) 
  1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.
  2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give to the judgment.
  • ICJ judgments are binding on the parties (Art. 59) and are deemed “final and without appeal.” (Art. 60). 
  • Enforcement is governed by Article 94 of the UN Charter. 
    • Member states  must comply with the judgment.
    • If a party does not comply, the aggrieved party may appeal to the UN Security Council “which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.” 
    • This may give rise to enforcement measures, which, however, is subject to the veto powers of the permanent members. 
    • But the winning state might make use of alternative methods of enforcement such as diplomatic or economic pressure.

Advisory jurisdiction. 
  • Under Article 65 of the Statute, the advisory jurisdiction may “in accordance with the Charter of the United Nations.” 
  • Article 96 of the  UN Charter empowers the General Assembly and the Security Council to make requests for advisory opinion. 
    • At the same time the General Assembly may authorize other UN agencies to seek advisory opinion. 
  • The provisions of the ICJ Statute say: 
Article 65. 
  1. The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request. 
  2. Questions upon which the advisory opinion of the Court is asked shall be laid before the Court by means of a written request containing an exact statement of the question upon which an opinion is required, and accompanied by all documents likely to throw light upon the question. 
Article 66.
  1. The Registrar shall forthwith give notice of the request for an advisory opinion to all states entitled to appear before the Court. 
  2. The Registrar shall also, by means of a special and direct communication, notify any state entitled to appear before the Court or international organization considered by the Court, or, should it not be sitting, by the President, as likely to be able to furnish information on the question, that the Court will be prepared to receive, within a time limit to be fixed by the President, written statements, or to hear, at a public sitting to be held for the purpose, oral statements relating to the question. 
  3. Should any such state entitled to appear before the Court have failed to receive the special communication referred to in paragraph 2 of this Article, such state may express a desire to submit a written statement or to be heard; and the Court will decide.
  4. States and organizations having presented written or oral statements or both shall be permitted to comment on the statements made by other states or organizations in the form, to the extent, and within the time limits which the Court, or, should it not be sitting, the President, shall decide in each particular case. Accordingly, the Registrar shall in due time communicate any such written statements to states and organizations having submitted similar statements.
For its part the UN Charter says: 
Article 96. 
  1. The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.
  2. Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.
  • By definition advisory opinions are non-binding. 
  • Acceptance or non-acceptance of the advisory opinion is determined by the internal law of the institution.
Other more active International Courts. 
  • The more active are the:
  1. Court of Justice of the European Communities
  2. European Court of Human Rights
  3. Benelux Court of Justice 
  4. Inter-American Court of Human Rights.
  • The International Criminal Court entered into force only in 2002.

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