<The Peaceful Settlement of International Disputes>

I. Introduction

The relative importance of judicial processes is often over-emphasized in

relation to the international settlement of disputes, particularly at the
expense of alternative means of resolving international disagreements.
Although adjudication remains important in the theoretical application of
international law, in practice, resolution of disputes is often achieved
through political processes such as negotiation, mediation or by the
intercession of international organizations. Students should be familiar with
the spectrum of processes through which international disputes are settled.
Article 2(3) of the United Nations Charter obliges all members to pursue
peaceful means of settling their international disputes, in order to ensure
that international peace, security and justice are not endangered. This
obligation is fortified by Article 33 which regulates the pacific settlement
of international disputes and which compels members to settle disputes in
the following terms:
“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.”

II. Diplomatic means of dispute settlement between states

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.

III. Settlement through the United Nations

The United Nations has, as a primary objective, the maintenance of

international peace and security and must ensure that disputes are settled
through peaceful resolution. Chapter VI of the Charter details the steps to
be taken by members to assure the pacific settlement of international
disputes.
However, in addition to the obligations placed on individual states, certain
organs of the United Nations are empowered to take specified actions to
facilitate the resolution of certain types of disputes. Article 33(3) permits
the Security Council to call on parties to a dispute which threatens the
maintenance of international peace to settle the issue by the methods
prescribed in Article 33(1). The Security Council may also investigate any
dispute which might cause international friction and, under Article 36, may
recommend appropriate measures or procedures for the settlement of such a
dispute. Article 37 requires the parties to such a dispute to refer the matter
to the Council where settlement by the means indicated in Article 33 proves
impossible.
Under Article 35, any dispute which is a threat to international peace may

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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.

International arbitration originated in the procedures established under the

Jay Treaty 1794 between the United States and the United Kingdom for the
settlement of bilateral disputes. This procedure was successfully invoked
throughout the nineteenth century by the parties, culminating in 1872 with
the Alabama Claims Arbitration (1892). In this case, under the terms of the
Treaty of Washington 1871, the parties agreed to submit allegedly breaches
of neutrality by the United Kingdom during the American Civil War to
binding arbitration.
Arbitration may be carried out by a single arbitrator, on an ad hoc basis,
or by reference to a panel of arbitrators. The Hague Convention for the
Pacific Settlement of International Disputes 1899 originally established the
Permanent Court of Arbitration, but the organization and composition of
this body was substantially revised by the 1907 Hague Convention of the
same name. The Permanent Court of Arbitration is not a continuous
institution nor a court of law. It is a panel of 300 nominees from the various
contracting parties who may be selected as arbitrators for the settlement of
a particular dispute. The Court has a permanent Bureau which fulfills
administrative functions.

A state cannot be compelled to arbitrate a matter without its consent, a

factor which remains a fundamental prerequisite for the initiation of these

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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.

Arbitral awards are generally binding on the parties as stipulated in the

special agreement and compliance with the arbitration awards is extremely
high. Normally arbitration between states is intended to be final and the
award is binding as a final settlement of a dispute. The general principle is
that the decision of the arbitral tribunal should not be disturbed except in
the event of a manifest error of law or fact.

Appeal of an arbitral award to the ICJ is permitted in certain

circumstances. For example, in Guinea-Bissau v. Senegal (1991) ICJ Rep
53 the ICJ clarified a number of points concerning the grounds on which
such appeals may be made.
a). If an arbitral body exceeds its competence, its decisions is null and void.
Arbitrators only have such powers as the parties have conferred on them in
the document by which they refer the matter to the panel- the special
agreement. If a tribunal fails to respect these limits, it exceeds its own
competence and the decision can be declared void.
b). Failure to reach a decision by true majority- if the vote passing the
decision of the tribunal does not amount to a true majority, the decision
cannot be given legal effect.
c). Insufficiency of reasoning- the decision of the arbitral body must be
supported by adequate legal arguments. However, a statement of reasoning,
although relatively brief and succinct, if clear and precise, does not amount
to an insufficiency of reasoning.

In the event that an arbitral decision is overturned on one of these three

grounds, the award of the tribunal is null and without binding force on the

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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.

<International Judicial Settlement: The PCIJ and the ICJ>

I. Introduction

The Permanent Court of International Justice (PCIJ) was the forerunner to

the International Court of Justice (ICJ). It was established pursuant to
Article XIV of the League Covenant, which conferred on the Court
jurisdiction over any issue which the parties “recognize as suitable for
submission to it for arbitration”. The Statute of the PCIJ was drafted by a
Commission of Jurists and bears a remarkable similarity to the subsequent
Statute of the ICJ. The Court was ultimately dissolved in 1946 on the
dissolution of the League of Nations and international judicial procedure
was resurrected in the form of the International Court of Justice (ICJ).

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.

II. Composition of the ICJ

The Court is composed of fifteen judges who are elected by an absolute

majority in separate and simultaneous meetings of the Security Council and

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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.

III. Contentious and non-contentious jurisdiction

The Court has both a contentious jurisdiction and an advisory jurisdiction.

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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.

Although a state is a party to the Statute and is entitled by right to utilize

the judicial processes of the Statute, no state may be compelled to litigate a
matter unless it consents to do so. The Security Council may recommend
that parties submit a dispute to the ICJ, but such a recommendation cannot
compel the states to litigate their differences.
State consent forms the basis of the contentious jurisdiction of the Court.
An example of this is where jurisdiction by way of a special agreement
arises.
The Court may exercise contentious jurisdiction only where the consent of
the parties has been established. This may be done in a number of ways:

a).Article 36(1): This provision allows states to voluntarily submit a dispute

to the jurisdiction of the Court. In particular, it is specifically declared that:

“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

8
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.

Where parties are submitting a dispute to the Court on a bilateral basis, in

order to litigate legal processes under this provision, the parties must agree
on the terms of a special agreement, which is a bilateral agreement
detailing with the consensus of the parties to litigate. The special agreement
must be lodged with the Court.

b).Forum prorogatum: prorogated jurisdiction arises when, at the initiation

of proceedings, only one state has expressly consented to jurisdiction, but
the consent of the other party may be implied. In the Corfu Channel
(Preliminary Objection) Case (1948) ICJ Rep 15 the Court accepted the
contention that a letter from the Albanian Deputy Minister for Foreign
Affairs expressed the consent of Albania. Further, consent to submit to
jurisdiction may be adduced from the actions of a state. In the Rights of
Minorities in Polish Upper Silesia Case (1928) PCIJ Rep Ser A No 15 the
Court stated that jurisdiction may be “inferred from acts conclusively
establishing it…(such as) the submission of arguments on the merits,
without making reservation in regard to the question of jurisdiction.
However, the existence of jurisdiction on the ground of forum prorogatum
has encouraged states to refrain from behavior which could be construed as
implied consent to the jurisdiction of the Court.

c).Article 36(2): the optional clause.

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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.

(2). Advisory jurisdiction

Article 96 of the UN Charter states:

“(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.”

The counterpart provision of the Statute is Article 65 of the UN Charter

which states that “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”.

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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.

Two problems have arisen in relation to the exercise of advisory

jurisdiction:
a).The suitability of subjects for an advisory opinion: The ICJ made it clear
that reference to ‘any legal question’ permitted the Court to give an
advisory opinion to questions qualifying ‘as an essentially judicial task’.
However, the political dimensions of requests for certain advisory opinions
cannot be ignored: see the Namibia Case (1971) ICJ Rep 16.
b).The propriety [prə praɪəti] of rendering an advisory opinion: The Court has
|

expressed concern at the use of requesting advisory opinions which are, in

fact, means by which states are circumventing the requirement of state
consent to adjudication.

IV. Limitation periods for international actions

The Statute of the ICJ contains no express provision relating to a period

within which a case must be brought to its attention. However, this is not to
say that such a period of limitation does not exist.

The ICJ acknowledged that a delay in initiating proceedings might render

an application inadmissible if the delay prejudices the rights of the other
party. A number of factors have to be taken into consideration in assessing
whether the circumstances of the case render the application inadmissible,

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including the relationship between the parties and the steps that had been
taken prior to litigation to resolve the matter.

V. Interim measures of protection

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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