#16800 - International Dispute Settlement - Public International Law

International Dispute Settlement

The UN Charter in Art 3(2) states that all members ‘shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered’. Although addressed to members, this obligation is also part of customary international law, which all states must observe. There is, however, no obligation to actually settle disputes — the only obligation is that if states choose to settle, it must be done peacefully. A dispute may arise not only between states, but also between a state and a company (Texaco v Libya), or between rival groups (Sudan) … these are also ‘international’ disputes which the obligation to settle peacefully applies to. There are several modes of dispute settlement: negotiation, mediation, settlement by the UN, conciliation, arbitration, and recourse to the ICJ. Of these, only the final two are ‘legal’ means of dispute settlement. The others are ‘diplomatic’ means.

Negotiation is the most common method of dispute settlement. There is no obligation to negotiate, apart from the obligation to negotiate in good faith once parties have entered into negotiations. This, however, would only require states to act honestly/reasonably in attempting to reach a settlement, not oblige them to actually settle. There are, however, treaties which specify that negotiation ought to be the primary route of dispute settlement, and parties are then bound by a legal obligation to negotiate; eg: Law of the Sea Convention 1982.

Mediation and good offices precedes the negotiation stage, persuading parties to negotiate, and then mediate when the parties have actually started negotiations. Or, where negotiation is not possible, the mediator interferes between the parties, aiding them in helping to reach a compromise. Examples of this could be the UN SG interfering in the Falklands Islands issue, or the Pope intervening between Argentina and Chile over the sovereignty of certain islands. Mediation is still a non-legal process though, as the mediator does not have the power to make a decision..

Settlement by the UN can be done by the GA, or the SC (and also the ICJ, which is an organ of the UN, but this is considered under a separate title below). Important to remember that these are still non-legal methods. The GA makes recommendations for the settlement of disputes, which are not legally binding, and cannot be imposed on parties. ‘The Assembly is a political body which makes decisions based on bloc allegiances rather than impartial judgment’. GA’s political character makes it more suitable to offer solutions to political and economic disputes, rather than legal questions. The SC has powers under Chapter VI of the Charter to settle disputes (Art 33). Any member or non-member may refer disputes to the SC if they seem to threaten international peace and security. However, without the presence/consent of the parties, the SC is generally reluctant to make recommendations (eg: India/Pakistan conflict). But SC also concerned with political rather than legal matters, and Art 36(3) of the Charter says that legal disputes should primarily be referred to the ICJ. However, SC’s decisions may affect the ICJ’s judgments/awarding of remedies/interim measures in certain cases (see page 290 Dixon for more).

Conciliation is a third party settlement — where the third party has the power to investigate the matter and submit suggestions that are not necessarily binding.

Arbitration is a legal procedure for the settlement of disputes between states by a binding award, as a result of a voluntarily accepted undertaking. Proceedings consider the legal rights and obligations of parties under international law, and a settlement is achieved by the application of this law to the facts. States must consent to the exercise of jurisdiction by the arbitrators. Arbitration has numerous advantages: parties can choose their arbitrator (and this may make the final award more credible and likely to be followed), can settle disputes between states and other bodies having international personality — typically company vs state (the ICJ cannot do this), and secrecy (for example, states may not want other investing companies to know the way it treated the suing investor). Disadvantages as compared to settlement by the ICJ include cost, unpredictability (because no access to previous case law like the ICJ, which although doesn’t use stare decisis usually follows its own decisions), and risk of non-impartiality due to the powerful party exerting pressure on the choice of arbitrator. Nevertheless, arbitration is the most commonly used judicial way of dispute settlement, especially in investor-State conflicts. Specific arbitration bodies: Permanent Court of Arbitration, International Centre for the Settlement of Investment Disputes (ICSID) …

The ICJ is composed of 15 judges elected by the GA and SC. Only states may be parties to disputes in the ICJ (Art 34 of ICJ Statute). Now see access, admissibility, interim measures, jurisdiction, and advisory opinions.

All members of the UN have access to the Court, and non-members may be parties to the statute in their own right, or under special conditions laid down by the SC (Art 35), or under special provisions laid down by treaties in force. This final clause has caused some controversy: the majority in Legality of Use of Force cases thought this meant only treaties that were already in force when the ICJ Statute entered into force in 1945, whereas the dissenting judges stated that Art 35(2) operated on any treaty in force…The question of access comes before jurisdiction.

After access, but still before jurisdiction, is the question of admissibility—that the dispute before the court is a legal dispute. The simple facts that a dispute has political overtones does not make it non-justiciable. Questions of admissibility can raise for the following reasons: failure to exhaust local remedies, lack of legal subject matter, undue interference w/ domestic affairs of states, undue delay …

Before deciding on the question of jurisdiction, the Court has power to indicate interim measures (Art 41). This is a form of measure/interference that does not depend on the consent of parties — this is why measures are ‘indicated’, but failure to follow these measures amounts to a breach of an international obligation (La Grand Case). In that case, German citizens were on death row in the US, and the German government requested from the US to halt executions — US failed to comply and executed one. Before the other scheduled execution, Germany brought a case against the US for breach of the Vienna Convention on Consular Relations, and the Court, pending judgment, indicated measures which required the other brother not to be executed while the Court prepared its opinion. The USA went ahead with the execution, and the Court later held that the US was in breach of international law — US had limited itself to the mere transmission of the text order to the State of Arizona, and this was seen as ‘less than could have been done even in the short time available’. The US had not complied with the order, which was binding in international law. States have generally NOT respected provisional measures indicated.

However, before indicating interim measures, the Court must be satisfied at least of the prospect of jurisdiction over the merits of the dispute (Nuclear Test Cases (Interim Protection) and Application of the Genocide Convention Case). The Court is not bound to order interim measures — rejected to do so in the Lockerbie case because the SC was dealing with the dispute. In the Great Belt Case, the Court refused to indicate measures because it was factually impossible for Denmark to infringe any of Finland’s rights before the merits of the case could be heard.

Jurisdiction of the court raises the most issues. ICJ does not have compulsory jurisdiction; it’s authority to hear cases depends on the consent of the parties.The raising of a preliminary objection to jurisdiction by a state does not destroy a state’s consent, because it is for the court to determine whether that objection is valid — the Court is reluctant to decline jurisdiction unless this is unavoidable (Nicaragua v USA).

So how does the ICJ actually acquire jurisdiction? How is consent given? Consent can be given ad hoc (compromis), whereby parties agree to refer the dispute to court — it is given for that dispute alone. It is also possible to achieve this by unilateral application of one state; if the other party signifies its acceptance, then both parties will have given consent. Consent may also be given post hoc, after the initiation of proceedings by one of the parties (forum progatum). This occurs where as the Court considers a unilateral submission, the other party expressly or impliedly signifies consent to jurisdiction. In the Corfu Channel case, Albania was taken to have consented on the basis of a very clear letter. In Djibouti v France, D had commenced proceedings by filing a unilateral application, and France had expressly agreed. Court emphasised that consent was important in substance; its form was not important. Agreement to jurisdiction could be deduced from certain acts that ‘unequivocally indicated’ to a desire to accept Court’s jurisdiction — can be express or implied. However, simply appearing before the ICJ to argue that a case is not admissible or ICJ does not have jurisdiction cannot be taken to be an acceptance of jurisdiction (Congo v Rwanda).

Consent can be given ante-hoc, either...